Foster v. Bourgeois , 253 S.W. 880 ( 1923 )

On Motion for Rehearing. Appellant earnestly insists, in his motion for new trial, that this court erred in sustaining appellees' objection to the consideration of his bills of exception, and the assignments of error based thereon, because the same were not filed within the time allowed by article 2073, Vernon's Sayles' Civil Statutes 1914, nor within the extended time allowed by the trial judge, based upon said article.

In support of his contention, appellant cites, for the first time, the case of G., C. S. F. Ry. Co. v. Felts, 60 Tex. Civ. App. 471,128 S.W. 155, in which it was held by this court that the time for filing bills of exception under the provisions of this article should be computed from the date of the order overruling the motion for a new trial, and not the date of the entry of the judgment proper in the case. That case is contrary to our holding in the case at bar, and is hereby overruled. That portion of article 2073 involved in this appeal is as follows:

"Provided, if the term of said court may * * * continue more than eight weeks, said statement of facts and bills of exception shall be filed within thirty days after final judgment shall be rendered, unless the court shall by order entered of record in said cause extend the time for filing such statement [of facts] and bills of exception."

It is further provided in this article that the extension of time which may be allowed by the trial judge shall not exceed the time for filing the record, etc., in the appellate court. The question raised, therefor, is: When does a judgment become final; that is, does a judgment become final on the date of the entry of the judgment proper, or on the date of the order overruling the motion for a new trial?

Words Phrases, in an exhaustive research of many cases, defines a judgment or decree, "to be final within the meaning of that term as used in the acts of Congress giving the Supreme Court jurisdiction of appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance by the Supreme Court, the court below would have nothing to do but to execute the judgment or decree it had already rendered." This same authority further defines a final judgment or decree as one which makes an end of the case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do. Words Phrases, vol. 3, pp. 2774 and 2775.

In construing when a judgment became final, the Supreme Court, speaking through Chief Justice Gaines, in the case of Cooper v. Yoakum, 91 Tex. 391,43 S.W. 871, held that the term "final judgment," as used in a similar article of the statute, was the rendition of the main or proper judgment in the case, and not the date upon which the minutes showed the motion for a new trial was overruled. In discussing the case, the court used the following language:

"We are of opinion that the first question certified should be answered in the affirmative, Section 142 of the Act of May 13, 1846, `To regulate proceedings in the district court,' provided that `no writ of error shall be granted after the expiration of two years from the rendition of the judgment. * * *' In Waterhouse v. Love, 23 Tex. 560, this statute was construed and it was there held that under it the writ of error should have been sued out within two years from the time at which the main judgment was rendered. In this opinion, speaking of the provision quoted above, the court say: `The language is too plain to be mistaken. It bars the remedy at the expiration of two years from the "rendition of the judgment." The rendition of the judgment is an independent fact, distinct from the adjournment of the court, and from other proceedings at the term, and in the same case; and it is from the happening of this fact, that the two years are to be computed. This is the plain meaning of the language of the statute.'"

The court further held, dealing with the same subject-matter, that —

"A previous section of the same act provides, in case of appeal, that the appeal bond shall be given `within twenty days after the term of the court at which the judgment or decree was rendered,' showing that the Legislature had in mind the distinction between the date of the judgment and of the adjourment of the court. The language of the present statute, in so far as it affects the point before us, is not different in substance. It reads as follows: `The writ of error may, in cases where the same is allowed, be sued out at any time within twelve months after the final judgment is rendered, and not thereafter.' * * * That the final judgment which is meant is the judgment proper in the case, and not the order overruling a motion for a new trial, is made manifest by the second preceding article of the Revised Statutes in relation to appeals. That article reads in part as follows: `An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered, by the appellants giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for new trial,' etc. * * *

"It is quite clear that the Legislature did not intend to use the words `final judgment' in one sense in article 1387, which fixes the time within which notice of appeal is to be given, and in a different sense in article 1389, which defines the date from which the twelve months are to be computed within which the writ of error is to be allowed. Besides, those words as used in the act of May 13, 1846, having been construed by this court, the Legislature in using the same words as applicable to the same subject-matter in article 1389 must be presumed to have intended to employ them in the same sense."

We are of the opinion, therefore, that the words "final judgment," as used in article 2073, mean the day on which the judgment proper was entered in the case, and not the day upon which the motion for new trial was overruled.

With the exception of the case of Ry. Co. v. Felts, supra, the Courts of Civil Appeals have universally followed the opinion by Chief Justice Gaines, in the case of Cooper v. Yoakum, 91 Tex. 391,43 S.W. 871, and that case must have been overlooked when the Felts Case was decided.

We are of the opinion that we correctly decided this case, in our former opinion, and the motion for rehearing is therefore overruled.

Overruled.