Carter v. Commissioners of Van Zandt County

HENRY, Associate Justice. Appellant sued Van Zandt County in a Justice Court. Judgment was rendered in favor of defendant. Plaintiff in due time filed a motion for new trial. Without his procurement, fault, or consent, the motion was not acted upon before the adjournment of the term, but an order was made by the justice continuing it until the next term of his court. At the next term he granted a new trial, and on the second trial of the cause rendered judgment in favor of plaintiff. The Commissioners Court refused to pay the amount adjudged, and this suit ivas filed in the District Court against the county commissioners of said county to compel them by a writ of mandamus to pay the judgment. The court sustained a demurrer to the petition and dismissed the cause. It appears that the first judgment by the justice was rendered on the 26th day of November, 1888, and the order for a new trial was not made until the first day of January, 1889. Article 1623 of the Revised Statutes reads: “Any justice of the peace may, at any time within ten days after the rendition of any other judgment in any suit tried before him, grant a new trial therein on motion in writing, showing that justice has not been done him in the trial of the cause.” This limits the power of the justice, and after the expiration of the ten days given he has no authority to set aside a judgment or grant a new trial. The law requires District Courts to act upon motions for new trials at the term when they are made, and this court has decided that such motions can not be continued or granted after the term. McKean v. Ziller, 9 Texas, 58; Bass v. Hays, 38 Texas, 128. The judgment is affirmed. Affirmed. .Delivered December 3, 1889.