Ben C. Jones & Co. v. Gammel-Statesman Pub. Co.

156 S.W. 317, 1913 Tex. App. LEXIS 697

• Court: Court of Appeals of Texas
• Decided: January 8, 1913
• Status: Published

Opinions

On Motion for Rehearing of Motion to Vacate Judgment and File Findings of Fact and Conclusions of Law.

JENKINS, J.

On May 24, 1911, this court affirmed the judgment of the trial court herein. On June 6, 1911, appellants filed their motion for a rehearing, which motion was overruled .by this court on December 6. 1911. • On January 4, 1912, appellants filed in the Supreme Court their petition for writ of error, which was refused by said court on May 28, 1912. On the same day, May 28, 1912, appellants filed in this court a motion to vacate its judgment, which was rendered, as above stated, on May 24, 1911, which motion to vacate judgment was overruled on October 9, 1912. On October 23, 1912, appellants filed a motion for a rehearing on their motion to “vacate judgment,” and requested this court to file its findings of fact and conclusions of law on said motion to vacate judgment. It perhaps would have been the proper practice 'for us to have dismissed the motion to vacate the judgment, instead of overruling the same, for the reason that that motion was, in effect, a second motion for a rehearing filed without leave of this court, and at a term subsequent to the term at which said judgment was rendered; but, as tbe first motion for rebearing was not passed upon until tbe next term of this court, we did not dismiss said motion to vacate, but considered tbe same and overruled it.

[1-3] Our reason for saying that tbe motion to vacate is in substance a motion for a rebearing is that it does not contain tbe requisite grounds of a motion to vacate a judgment. A motion to vacate a judgment takes tbe place of tbe common-law writ of coram nobis, and may be filed when a judgment bas been rendered in an appellate court, wbicb is void by reason of some fact not disclosed by tbe record, as where a judgment is against a married woman, who appears upon tbe record as a feme sole, in a matter in wbicb sbe was not legally liable by reason of ber coverture, or that tbe party against whom tbe judgment was rendered was dead at tbe time of sucb rendition. Cruger v. McCracken, 87 Tex. 587, 30 S. W. 537; Hart v. Mills, 31 Tex. 313. For this purpose Courts of Appeal bave power, by affidavit or otherwise, to determine sucb matters. Laws 1892, p. 7. But neither tbe so-called motion to vacate tbe judgment nor tbe motion for rehearing on said motion suggests any issue of fact dehors tbe record, and no affidavit as to any sucb alleged fact is filed with said motion. It is true tbe motion for rehearing is verified by the affidavit of one of tbe appellants, as follows: “Before me, tbe undersigned authority, appeared R. H. Cousins, who being by me duly sworn on oath says that be bas personal knowledge of all of the facts set out in tbe foregoing motion, and that all of said facts are true.”

Tbe only alleged facts set out in said motion are “a newly discovered outstanding judgment on one installment of tbe contract sued upon, wbicb renders tbe judgment of tbe trial court void, and further said judgment was obtained through fraud, accident, and mistake.” Tbe appellants herein were parties to tbe judgment referred 'to; and, though they may not in fact bave known of said judgment at the time of the trial hereof in tbe district court, they are charged by law with notice of said judgment; and hence it cannot as a matter of law be said to be newly discovered. No facts are set out in said motion wbicb tend to show any fraud on tbe part of appellees in obtaining judgment in tbe trial court. The allegation that tbe trial court was misled by appellees’ attorneys as to what tbe Supreme Court bad decided on tbe former appeal of this case is not, in a legal sense, an allegation of fraud, accidertt, or mistake. Tbe substance of said alleged motion to vacate tbe judg^ ment is that tbe trial court rendered judgment against appellants on findings -of fact and conclusions of law wbicb were res ad-judicata in appellants’ favor by reason of former proceedings in said court, and tbe decision of tbe Supreme Court on a former appeal of this case, and we are asked to so find tbe facts. As tbe trial court was not requested to file its findings of fact or conclusions of law, and did not do so, we cannot say, as a fact, upon what it based its judgment. But, even if tbe trial court did base its judgment on findings of fact or conclusions of law wbicb by reason of former proceeding^ in said court or in tbe Supreme Court were erroneous, this would only show that tbe trial court rendered an erroneous judgment, and not that its judgment was void. These were proper matters for consideration on tbe submission of this case in this court, if properly presented, but they are not matters wbicb can be considered on a motion to vacate tbe judgment of this court. Tbe judgment of this court may have been erroneous, but that was a matter for tbe Supreme Court to pass upon; the appellants submitted that issue to tbe Supreme Court, and it sustained this court. Tbe Supreme Court may bave erred in refusing a writ of error, but, if so, tbe errors of this court and of tbe Supreme Court were errors of law, and cannot be set aside by motion to vacate the judgment.

For the reasons stated, tbe motion for a rehearing on said alleged motion to vacate tbe judgment herein and tbe said motion to file finding^ of fact and conclusions of law are overruled.