Hartzell v. Jones

Opinion.— The statute, in effect, provides that all motions for new trial, in arrest of judgment, or to set aside a judgment, shall be made within two days after the rendition of the verdict, if the term continues that long, and if not, then before the end of the term; and that such motion shall be determined at the term when made. In the case of McKean v. Ziller, 9 Tex., 58, a motion for new trial was made at the term when the judgment was rendered. The court took the same under advisement, and at the next term sustained the motion and granted a new trial. The court held that the statute is peremptory and must be obeyed; and the order granting the new trial was void. Obviously the order of the court granting the motion for new trial, made at the second term of the court after the rendition of the judgment, was in direct violation of the statute and therefore void. The doctrine is well established in this state that the court has control over, and for good cause may alter and vacate, its judgments during the term at which they are rendered; but after the term expires that control is lost, and such judgments can only be set aside or vacated by an [563] original proceeding instituted for that purpose, setting forth equitable grounds sufficient to entitle the party to a rehearing. Goss v. McClaran, 8 Tex., 241; McKean v. Ziller, supra; Overton v. Blum, 50 Tex., 417; Bryorly v. Clark, 48 Tex., 345. The court did not err in vacating the void order , granting a new trial at the term of the court next after the judgment was rendered. Appellant’s counsel insist that the appeal from the judgment, confirming the report of the. commissioners, and divesting and investing title in accordance therewith, brings the whole case before the court for review, and authorizes this court to examine and revise any errors that may have been committed in the trial resulting in the judgment determining the title and=-appointing commissioners to partition the land. The case of Cannon v. Hemphill, 7 Tex., 196, is directly in point. Hemphill, Chief Justice, delivering the opinion of the court, said: “ And whatever may be the character of such decrees, when considered with reference to the question solely of susceptibility of 'appeals, yet if they be no further acted upon, and no appeal is taken, they must be considered for the purpose of putting an end to litigation, as sufficient to secure the parties in their rights as adjudicated, and would, in this respect, be final and conclusive.” See, also, Marle v. Andrews, 4 Tex., 208; McFarland v. Hall, 17 Tex., 676. The only questions that could be considered on this appeal are such as properly arise on the report of the commissioners, and that would be only as to the conformity of the division of the land with the rules settled by the decree, and such as would arise upon the acts of the commissioners. There is no statement of facts, and there is no such error disclosed by the record as would, under such circumstances, authorize a reversal of the judgment. Affirmed.