Ben C. Jones Co. v. Gammel-Statesman Pub , 156 S.W. 317 ( 1913 )

On Motion for Rehearing of Motion to Vacate Judgment and File Findings of Fact and Conclusions of Law. On May 24, 1911, this court affirmed the judgment of the trial court herein. On June 6, 1911, appellants filed their motion for a rehearing, which motion was overruled by this court on December 6, 1911. On January 4, 1912, appellants filed in the Supreme Court their petition for writ of error, which was refused by said court on May 28, 1912. On the same day, May 28, 1912, appellants filed in this court a motion to vacate its judgment, which was rendered, as above stated, on May 24, 1911, which motion to vacate judgment was overruled on October 9, 1912. On October 23, 1912, appellants filed a motion for a rehearing on their motion to "vacate judgment," and requested this court to file its findings of fact and conclusions of law on said motion to vacate judgment. It perhaps would have been the proper practice for us to have dismissed the motion to vacate the judgment, instead of overruling the same, for the reason that that motion was, in effect, a second motion for a rehearing filed without leave of this court, and at a term subsequent to the term at which said judgment was rendered; but, as the first motion for rehearing was not passed upon until the next term of this court, we did not dismiss said motion to vacate, but considered the same and overruled it.

Our reason for saying that the motion to vacate is in substance a motion for a rehearing is that it does not contain the requisite grounds of a motion to vacate a judgment. A motion to vacate a judgment takes the place of the common-law writ of coram nobis, and may be filed when a judgment has been rendered in an appellate court, which is void by reason of some fact not disclosed by the record, as where a judgment is against a married woman, who appears upon the record as a feme sole, in a matter in which she was not legally liable by reason of her coverture, or that the party against whom the judgment was rendered was dead at the time of such rendition. Cruger v. McCracken, 87 Tex. 587, 30 S.W. 537; Hart v. Mills, 31 Tex. 313. For this purpose Courts of Appeal have power, by affidavit or otherwise, to determine such matters. Laws 1892, p. 7. But neither the so-called motion to vacate the judgment nor the motion for rehearing on said motion suggests any issue of fact dehors the record, and no affidavit as to any such alleged fact is filed with said motion. It is true the motion for rehearing is verified by the affidavit of one of the appellants, as follows: "Before me, the undersigned authority, appeared R. H. Cousins, who being by me duly sworn on oath says that he has personal knowledge of all of the facts set out in the foregoing motion, and that all of said facts are true."

The only alleged facts set out in said motion are "a newly discovered outstanding judgment on one installment of the contract sued upon, which renders the judgment of the trial court void, and further said judgment was obtained through fraud, accident, and mistake." The appellants herein were parties to the judgment referred to; and, though they may not in fact have known of said judgment at the time of the trial hereof in the district court, they are charged by law with notice of said judgment; and hence it cannot as a matter of law be said to be newly discovered. No facts are set out in said motion which tend to show any fraud on the part of appellees in obtaining judgment in the trial court. The allegation that the trial court was misled by appellees' attorneys as to what the Supreme Court had decided on the former appeal of this case is not, in a legal sense, an allegation of fraud, accident, or mistake. The substance of said alleged motion to vacate the judgment is that the trial court rendered judgment against appellants on findings of fact and conclusions of law which were res adjudicata in appellants' favor by reason of former proceedings in said court, and the decision of the Supreme Court on a former appeal of this case, and we are asked to so find the facts. As the trial court was not requested to file its findings of fact or conclusions of law, and did not do so, we cannot say, as a fact, upon what it based its judgment. But, even if the trial court did base its judgment on findings of fact or conclusions of law which by reason of former proceedings in said court or in the Supreme Court were erroneous, this would only show that the trial court rendered an erroneous judgment, and not that its judgment was void. These were proper matters for consideration on the submission of this case in this court, if properly presented, but they are not matters which can be considered on a motion to vacate the judgment of this court. The judgment of this court may have been erroneous, but that was a matter for the Supreme Court to pass upon; the appellants submitted that issue to the Supreme Court, and it sustained this court. The Supreme Court may have erred in refusing a writ of error, but, if so, the errors of this court and of the Supreme Court were errors of law, and cannot be set aside by motion to vacate the judgment.

For the reasons stated, the motion for a rehearing on said alleged motion to vacate the judgment herein and the said motion to file findings of fact and conclusions of law are overruled.