Perryman v. Gardner

Peyton, J., delivered the opinion of the court. On the 21st day of March, 1868, the Chancery Court of Tishomingo county rendered a decree in favor of James Perry-man and wife, two of the complainants, against S. O. Gardner and T. E. Powell, defendants; and at the same term, upon motion of S. P. Shaw and other complainants in said cause, the court, after hearing argument of counsel on both sides, set aside the said decree. Prom this order or decree, the appellants bring the case into this court by appeal, and insist that the court, in setting aside said decree, erred. The order appealed from is not a final decree, nor is it such an interlocutory decree as is contemplated by the statute, Eev. Code, 555, art. 102. The cause now stands in the court below as if no decree had ever been rendered, and subject to such further jn’oceedings therein as the parties may think proper to take. The court has control of its own proceedings during the term at which they are had, and has, as a general rule, an undoubted right to change, recall, or set aside any order, judgment, or. decree at any time during the term at which they are made. This is a matter resting in the sound discretion of the court, with the exercise of which this court seldom, if ever, interferes. The proceedings during the term are in fieri, and rest in the breast of the court, which may set them aside, or change them so as to make them conform to its own sense of truth and justice. Where a court, in the exercise of its discretion, directs that an order, previously made by them, should be stricken out, it is the same as if such order never existed. Williams v. Floyd, 5 Iredell, 649. So in the case at bar, the decree being set aside, the cause remains to be proceeded with as if such decree never existed. Where a motion is addressed to the discretion of the court, to regulate which there are no fixed rules, its decision cannot [550] be revised, and it is only to be guided by its own sense of justice. Borden v. Houston, 2 Texas, 594. "We think this court cannot entertain jurisdiction of this case, and the appeal will therefore be dismissed.