Wells v. Melville

25 Tex. 337

Opinion

Bell, J.

It was error in the court below to set aside upon motion, its order of a former term granting a new trial of the cause. It does not necessarily follow that the new trial was improperly granted because the motion for the new trial was not made until more than two days after verdict, because facts might have existed that would have made it proper for the court to grant the new trial, although the motion was not made until more than two days after verdict. But even if the new trial was improperly granted, the order granting it ought not to have been set aside at a subsequent term. The motion for new trial ought to have been resisted at the time- it was presented to the court, so that in case of a refusal by the court to grant the new trial, the party against whom the judgment was rendered, might have an opportunity to prepare his case for removal to this court, if he should think proper to bring it here.

We forbear any discussion of the power of the District Court to annul, at one term, the orders of a former term.

The judgment is reversed and the cause remanded.

Reversed and remanded.