Dial v. Collins

40 Tex. 367

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinions

McAdoo, J.

Article 1470, Paschal’s Digest, reads as follows: “New trials maybe granted in all civil cases, on such terms and conditions as the court may direct, but not more than two new trials shall be granted to either party in the same cause, except the jury have been guilty of some misconduct, or erred in matter of law.”

This cause has been three times tried before j uries, on each trial the jury returning a verdict for the plaintiff in almost the same identical amount, and each judgment has been by the court below set aside, and new trial granted.

On the last trial, the verdict of the jury was rendered on special issues of fact, no matter of law being submitted to them by the court as a basis of verdict.

The defendant moved for a new trial. In his motion therefor, no misconduct of the jury nor error committed by the jury in any matter of law was alleged in the motion.

In order to have carried the application for a third new trial out of the terms and spirit of'the statute above quoted, we think it devolved on the defendant in his motion to set forth some specific acts of misconduct, or some specific error or mistake of law committed by the jury. This he did not do, and in granting a third new trial to the defendants, without such misconduct or error of law by the jury, the court erred.

The rule laid down in the statute is not directory, it is mandatory.

No discretion is left to the court unless the motion comply with the statute.

The order of the court, therefore, granting the new trial on the third application was a nullity.

When the plaintiff entered his motion to vacate the order granting the third new trial, and praying that execution be awarded, this motion should have been granted.

Ordinarily the granting of motions for new trial is to determine by a sound-discretion of the court. This rule, however, is not absolute. When, as in this case, a mandatory rule is laid down in the statute, it must be followed. In McKean v. Ziller, 9 Texas, 59, where a motion for a new trial was held under advisement until the next term of the court, and a new trial was granted at the next term, this court held that the statute requiring all motions for new trials to be acted on during the term at which the trial was had was peremptory and must be obeyed, and that an order granting a new trial on mere motion, at the next term, was a nullity. In that case, as in this, a motion was made by the plaintiff to dismiss the case from the docket, and that execution be awarded on the judgment rendered on the verdict of the jury.

The court overruled the motion, and the cause was brought to this court on error.

Justice Wheeler, delivering the opinion of the court, said: “ We are of opinion the court erred in refusing to set aside the proceedings subsequent to the judgment and award execution, and that the judgment therefore be reversed, and such judgment be rendered as the court below ought to have rendered.”

The judgment of the District Court is reversed and the proper judgment rendered here in accordance with this opinion.

Bevebsed and bendebed.

Opinion delivered October 7. 1873.

A rehearing was granted.