Lovenstein v. Lovenstein

LOONEY, J. The pertinent facts of the case, stated in chronological order, are these: On February 7,1926, judgment for divorce wafe rendered in favor of W. I. Lovenstein against his wife, Mary E. Lovenstein, on service of process by publication. The defendant made no appearance, either in person or by an attorney of her selection, but within two years sought a new trial under the provisions of article 2236, R. *272 S. 1925. Her petition for new .trial was beard and granted on May 28, 1928, but tbe eleris failed to enter tbe order in tbe minutes of court until some time later. Tbe case was finally tried on its merits July 5, 1929, and judgment was rendered denying plaintiff’s petition, from wbicb be did not appeal. Discovering tbe failure of tbe clerk to enter tbe order for a new trial, defendant moved for a nunc pro tunc entry, wbicb tbe court authorized, and tbe same was duly entered on September 24, 1929, as of May 28, 1928. On May 30, 1929, plaintiff filed a motion, based on sundry grounds, praying that tbe order granting a new trial and tbe nunc pro tunc entry, be set aside and held for naught. From the order overruling this motion plaintiff prosecutes this appeal. We have rather an anomalous situation. Plaintiff acquiesced, without appealing, in tbe final judgment against him on the merits of tbe case, but seeks by this appeal to bring up for review tbe action of tbe court vacating tbe original judgment and granting defendant a new trial. -This, in our opinion, cannot be done. Defendant’s petition for a new trial was authorized by tbe following provisions of article 2236, R. S. 1925, viz.: “In cases in which judgment has been rendered on service 'of process by publication, where the defendant has not appeared in person or by attorney of bis own selection: 1. Tbe court may grant a new trial upon petition of tbe defendant showing good cause, supported by affidavit, flled within two years after such judgment was rendered. Tbe parties adversely interested in such judgment shall be cited as in omer cases. * * ⅜” Our. courts have uniformly held, with possibly one exception (Brown v. Dutton, 38 Tex. Civ. App. 294, 85 S. W. 454), that a proceeding under tnis statute for a new trial by a defendant, served with process by publication, is not an independent suit in equity to set aside or review the judgment, but is a continuation of tbe suit in which the judgment complained of was rendered. This being true, it follows that an order either granting or refusing a new trial is interlocutory in nature, and not appealable. See Miles v. Dana, 13 Tex. Civ. App. 240, 36 S. W. 848, 851; Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662; Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S. W. 1114, 1116, 121 S. W. 561; Fred v. Fred, 58 Tex. Civ. App. 574, 126 S. W. 900, 901; Wiseman v. Cottingham, 107 Tex. 68, 71, 174 S. W. 281; Houston Oil Co. v. McCarthy (Tex. Com. App.) 245 S. W. 651. Other questions raised are subsidiary, and for that reason will not be discussed. Tbe appeal attempted was not authorized, being from tbe interlocutory order granting a new trial; hence we acquired no jurisdiction of tbe case other than to enter a dismissal. Appeal dismissed.