Linxwiler v. Linxwiler

Court of Appeals of Texas

Linxwiler v. Linxwiler

175 S.W. 1128, 1915 Tex. App. LEXIS 484

Court of Appeals of Texas·Decided April 29, 1915·No. No. 1459.·Published

Opinion

LEVY, J.

Charles E. Linxwiler sued his wife for divorce, and a decree was rendered in his favor. The defendant in the court below waived citation, but did not make answer. At the same term of court at which the decree was rendered the court allowed and entertained the second motion of the defendant wife for a new trial, and set the decree of divorce aside, and granted a new trial of the cause. The motion set up, among other things, that the waiver of service was signed by her “under duress and through fear.” Appellant by what is termed a “plea in intervention” appeared and contested the granting of a new trial, averring that on the day of the decree she married the plaintiff.

[1,2] The plaintff also filed answer to the motion. The appeal was taken by the intervener, the third person, to revise the judgment of the court setting aside the decree of divorce and granting a rehearing of the cause. The jurisdiction of the district court to revise or set aside its own judgment continues during the term. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 483. And the granting of a motion for new trial during the term at which the decree was entered, as here, is not that character of final judgment which authorizes an appeal direct therefrom to this court. Sweeney v. Jarvis, 6 Tex. 36; Hughes v. Maddox, 6 Tex. 90; Hope v. Long, 122 S. W. 40; Taylor Co. v. Johnson, 147 S. W. 605. Therefore this court is without jurisdiction to entertain the axipeal, and it must be dismissed, without decision of any question in the case.

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LEVY, J.

Charles E. Linxwiler sued his wife for divorce, and a decree was rendered in his favor. The defendant in the court below waived citation, but did not make answer. At the same term of court at which the decree was rendered the court allowed and entertained the second motion of the defendant wife for a new trial, and set the decree of divorce aside, and granted a new trial of the cause. The motion set up, among other things, that the waiver of service was signed by her “under duress and through fear.” Appellant by what is termed a “plea in intervention” appeared and contested the granting of a new trial, averring that on the day of the decree she married the plaintiff.

[1,2] The plaintff also filed answer to the motion. The appeal was taken by the intervener, the third person, to revise the judgment of the court setting aside the decree of divorce and granting a rehearing of the cause. The jurisdiction of the district court to revise or set aside its own judgment continues during the term. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 483. And the granting of a motion for new trial during the term at which the decree was entered, as here, is not that character of final judgment which authorizes an appeal direct therefrom to this court. Sweeney v. Jarvis, 6 Tex. 36; Hughes v. Maddox, 6 Tex. 90; Hope v. Long, 122 S. W. 40; Taylor Co. v. Johnson, 147 S. W. 605. Therefore this court is without jurisdiction to entertain the axipeal, and it must be dismissed, without decision of any question in the case.

Linxwiler v. Linxwiler, 175 S.W. 1128, 1915 Tex. App. LEXIS 484 (Tex. Ct. App. 1915).

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