Babbs v. Hall

HIGGINS, Justice. ■ This is a suit by appellants against Mrs.' Hall, administratrix of the estate of J. E. Hall, deceased, to recover upon a judgment for ⅜2,088.74, rendered in the state of Mis [166] souri in favor of appellants and against the deceased prior to his death. The ease was tried before the court and held under advisement until the term succeeding that at which the trial was had. At such succeeding term judgment rendered for the defendant. It is complained the court was without authority to hold the ease under advisement and render judgment at such succeeding term. The practice and procedure in the district courts of Dallas county is governed by article 2092, R. S. Section 28 thereof provides: “A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court.” When a case has been tried without a jury and taken under advisement by the court, the same is “on trial” until the court renders its judgment. Stephenson v. Nichols (Tex. Com. App.) 286 S. W. 197; Edwards v. Edwards (Tex. Civ. App.) 288 S. W. 634; Id. (Tex. Com. App.) 295 S. W. 581; Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1079, 48 A. L. R. 355. Therefore, under the express provisions of section 28, the court, in this case, was authorized at the succeeding term to proceed with further consideration of the case and to render judgment therein. District Court Rule 66 is controlled by said section 28. Appellants in this connection cite Rouff v. Boyd, 16 S.W.(2d) 403, by the Galveston Court of Civil Appeals, but in that case two terms intervened between the term at which the trial was had and that at which the judgment was rendered. The same court in the later case of Atlas v. Byers, 21 S.W.(2d) 1080, sustained a judgment rendered at the term succeeding the one at which the trial was had, citing Nevitt v. Wilson, supra, in support of its ruling and distinguishing Rouff v. Boyd. In Spencer v. Bank, 28 S.W.(2d) 1104, the Amarillo Court, upon the authority of Nevitt v. Wilson, sustained a judgment of a district court of Dallas county rendered at the succeeding term. We are, therefore, of the opinion the matter complained of presents no error. The return upon the summons in the Missouri case shows personal service upon the deceased. The court found that he was not served. Appellants attack this finding as unsupported by the evidence but the evidence abundantly supports the same. When a judgment of another state is sought to be enforced in this state, it is competent to show want of jurisdiction of the person of the defendant by the court which rendered the judgment. Citation of authority to that effect is unnecessary. Upon the finding indicated judgment was properly rendered for defendant and other errors complained of, if well taken, are nevertheless harmless and afford no ground for reversal. Affirmed.