Texas Livestock Marketing Ass'n v. Rogers

244 S.W.2d 859

• Court: Court of Appeals of Texas
• Decided: December 19, 1951
• Docket: 12346
• Status: Published

Opinions

PER CURIAM.

Noel Rogers, appellee, has filed a motion to dismiss the appeal for want of jurisdiction. His contention is that the appeal bond was not filed within thirty days after the overruling of the motion for a new trial and therefore no appeal was perfected. Specifically, he contends that the amended motion for a new trial was overruled by operation of l'aw on May 23, 1951, because it was not presented to the court within the thirty-day period as required by Rule 330 (j), Texas Rules of Civil Procedure, and that appellant’s appeal bond, filed on June 25, 1951, came too late to perfect an appeal to this Court. The trial court’s findings of fact with reference to this matter are as follows: “That on the 17th day of May, 1951, the 45th District Court was engaged in the trial of another case, and during a short break in the trial, counsel for Defendant handed the Court a large paper, and the Court upon inquiring as to what it was, was informed by Defendant’s attorney that it was his amended motion for new trial' which he wanted to present. The Court, at the request of counsel for Defendant, without qualification or reservation, noted the following on the jacket of said motion: ‘Presented to the Court this 17th day of May, 1951’. Signed, ‘Raymond Gerhardt’.”

The clerk of the court then made the following entry in the rough minutes of the court, to-wit: “F-62,328 Noel Rogers v. Texas Livestock Marketing Association, Defendant’s Amended Motion for New Trial filed 4-23-51, Presented to Judge Raymond Gerhardt 5-17-51.” .

The trial judge on May 24, 1951, permitted the appellant to offer evidence and argue his amended motion for a new trial and on that date entered an order reciting that the motion had been duly presented to him on May 17, 1951, and then proceeded to overrule the motion. These facts are sufficient to show that appellant’s amended motion for a new trial was presented to the trial court within the thirty-day period required by Rule 330 (j), supra. Basham v. Smith, Tex., 233 S.W.2d 297. Appellee relies very strongly upon an opinion by the Austin Court of Civil Appeals in Bingham v. Kimbrell, 241 S.W.2d 252. The facts in that case are quite different from those in the case at bar. ■ In the Bingham case the trial judge did not understand that the motion was being presented to him nor did he take any action with reference to the same. While in the case at bar the trial judge evidently understood that the motion was being presented to him because he so endorsed it at the time. The clerk also entered a notation in his rough minutes so stating, and the trial judge, in passing upon the motion, definitely found that the motion was presented to him within the thirty-day period.

It occurs to this court that in passing upon what is meant by the word “presented” as used in Rule 330(j) of T. R.C.P. the court should be liberal in its construction so as to favor the right of appeal rather than give such word a strict construction and thereby defeat the right of appeal. When an attorney for the party appealing files his motion or amended motion for a new trial and calls it to the attention of the trial court, and informs him that he is ready to present it for the court’s action, he has done about all that he can do. As to just when and how the motion is heard by the court is a matter addressed to the discretion of the court and one which the litigant can not control. It is true that the litigant must present the motion to the court without qualification or reservation, and if the court immediately passes on the motion he is not in a position to' complain.

In an advisory opinion rendered by the sub-committee on Interpretation of Texas Rules of Practice and Procedure in Civil Cases, the members of the committee unanimously agreed that if the record shows that as a matter of fact the motion was presented without any qualification or reservation within the thirty-day period, such presentation complies with Rule 330' (j), and the court may after the expiration of the thirty-day period hear argument and consider authorities in support or denial of the motion. 8 Tex.Bar Journal page 26. While this advisory opinion is not binding on the courts, we feel that in this instance it is very persuasive.

The motion is overruled.