Marvin v. Pierson , 115 S.W.2d 712 ( 1938 )

This cause had been regularly set for trial and upon call of the docket was dismissed for want of prosecution, by reason of the agreement above quoted not having been communicated to Judge Nash. Such dismissal by the trial court, if mistakenly ordered, was a judicial and not a clerical error; and, after expiration of the term, an independent proceeding containing all of the elements of a bill of review is essential to again invoke the jurisdiction of the court. Love v. State Bank Trust Co., 126 Tex. 591, 90 S.W.2d 819. That the parties intended their transactions to be merely an agreed motion for a new trial, and that the agreement intrinsically lacked the material features of a bill of review in equity, is beyond question. Even if the joint application be deemed to have waived the equitable requisites of such a bill, yet, in this character of proceeding, the law does not contemplate merely the granting of a new trial and reinstatement of the case for trial at a future day, but, rather, it contemplates a re-examination of the entire case. Green v. Green, Tex.Com.App., 288 S.W. 406; Hubbard v. Tallal, 127 Tex. 242,92 S.W.2d 1022. The following statement in Wear v. McCallum, Judge,119 Tex. 473, 33 S.W.2d 723, 724, is pertinent: "The respondent Lyles, joined by respondent Feagin, prayed that `said judgment be set aside and his motion for new trial or bill of review granted,' etc. The district judge denominates their pleading a bill of review, but acted upon it and treated it as a motion for a new trial. In other words, instead of proceeding to a hearing and determination of the merits of the whole controversy and the rendition of a final judgment in the case, as is the function and purpose of a bill of review, he simply granted a new trial. He entered his order that the judgment theretofore rendered in the case be vacated and held for naught, and the case was reinstated on the docket for trial in the future as in other cases of new trial. For the purpose of granting a new trial his order was void, as the judgment had become final under the law. The pleading of respondent Lyles, joined by Feagin, was insufficient as a bill of review."

Judge Bookhout of this court, in Sperry v. Sperry, 103 S.W. 419, 421, said: "The courts enforce the rules governing the granting of motions for new trials after the expiration of the term with much strictness." Relief will not be granted, unless the party seeking it can clearly show, to the satisfaction of the chancellor, that he has a good defense or cause of action, which he was prevented from asserting, by fraud, accident, or mistake, or acts of the opposite party, wholly unmixed with any fault or negligence on his part. Johnson v. Templeton, 60 Tex. 238, 239. It will be noted that the only case cited by appellant in support of the validity of the order of reinstatement in question (McCord-Collins Commerce Co. v. Stern et al., Tex.Civ.App. 61 S.W. 341), contains all of the substantial requisites of a bill of review, including a showing of meritorious cause of action. It may be that the agreement of the parties herein was an effective substitute for the necessary pleading and proof above referred to, and that appellee by his joinder was estopped to attack the order of reinstatement, but personally I doubt the validity of the agreement itself. If the court's jurisdiction of the cause was lost, to be vitalized and rendered active only through an original petition for a new trial, in the nature of a bill of review, the parties cannot confer such potential jurisdiction by agreement; nor can estoppel be urged, if the agreed judgment of reinstatement be in fact void. At most, the effect of the joint application was the institution of a new suit, as of the date of its filing, and not a continuation of the original case. Cairo Brewing Co. et al. v. Hogg, 141 Mo. App. 391, 125 S.W. 831; United States v. Harris, 7 Cir., 80 F.2d 771. For these reasons, I have concluded that this cause should be affirmed, and here enter my dissent on rehearing.