Garza v. Garza , 191 S.W.2d 767 ( 1945 )

In my opinion the judgment appealed from should be reversed and the cause remanded, for the reason that the trial below never proceeded to that point or stage where the trial judge was authorized to render a final judgment on the merits against plaintiff. Defendant asserted no claim for affirmative relief in her pleadings.

The judgment itself affirmatively discloses the trial court's error in that it recites that "during the testimony of plaintiff in said cause and before plaintiff had rested" final judgment was rendered against plaintiff upon the theory that plaintiff while on the stand had testified to certain facts which if true would have precluded the rendition of a judgment in his favor upon his pleaded grounds for divorce. Plaintiff excepted to the rendition of judgment against him and the case is brought here upon a point which efficiently challenges the correctness of the trial court's action in rendering the judgment which it did render at the particular stage in the trial at which the judgment was rendered.

The above is a sufficient statement of the case to demonstrate that the judgment should be reversed. To my mind it is immaterial that this is a divorce case, or that prior to the precipitate ending of proceedings below, the plaintiff had failed to make out a case or had "sworn himself out of court." Had plaintiff rested his case or refused to proceed with the introduction of his testimony so that it could be said that that part of the trial allotted to plaintiff to introduce his evidence had passed, I would readily agree with my learned associates that the judgment should be affirmed for the reasons set forth in the opinion.

However, the action of the trial court here deprived plaintiff of his absolute right to take a non-suit prior to the time when in the orderly course of trial procedure he was called upon to decide whether or not he desired to take a non-suit.

In Corpus Juris it is stated that "as a general rule, the court cannot, either on its own motion or that of defendant, dismiss the case before plaintiff has completed the presentation of his proof." 64 C.J. 417, § 410. Here, of course, the trial court went further than to enter a mere dismissal of the cause, but entered a judgment which in any subsequent proceedings would support a plea of res judicata. A judgment of non-suit or dismissal would not have that effect, yet it is stated by Texas Jurisprudence under the title "Divorce and Separation" that: "In accordance with general rules, the defendant in a divorce suit may be entitled to a voluntary nonsuit. And the plaintiff has an absolute and unqualified right to take a nonsuit at any time before the jury retires, when the case is tried before a jury, or before the decision is announced when tried by the judge." See also, Ex parte Norton, 118 Tex. 581,17 S.W.2d 1041.

Appellee has not cited and we have not found a Texas decision which would support the trial court's action despite the fact that the procedural rules applicable to this situation are taken from statutes which were in existence for a long period of time prior to the transfer of the rule making power to the Supreme Court. The trial court's action appears to be unprecedented.

Rules 164, 262 and 265, Texas Rules of Civil Procedure, read as follows:

"Rule 164. Non-Suit. At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.

"Source: R.C.S. art. 2182, unchanged."

"Rule 262. Trial by the Court. The rules governing the trial of causes before a jury shall govern in trials by the court in so far as applicable.

"Source: Art. 2176, unchanged."

"Rule 265. Order of Proceedings on Trial by Jury. The trial of cases before a jury shall proceed in the following order unless the court should, for good cause, to be stated in the record, otherwise direct:

"(a) Plaintiff's petition shall be read to the jury.

"(b) Defendant's answer shall be read to the jury.

"(c) If there be any intervenor his pleadings shall be read.

"(d) The party upon whom rests the burden of proof on the whole case under the pleadings, shall be permitted to state to the jury briefly the nature of his claim or defense and facts relied upon in support thereof.

"(e) Such party shall then introduce his evidence.

* * * * * "Source: Art. 2180."

Subsequent rules relate to further proceedings contemplated upon the trial of a cause, including the rendition of judgment.

It is my opinion that when a trial has reached that stage where the plaintiff has begun to introduce his evidence, no final judgment on the merits can be rendered against said plaintiff until he has completed the introduction of his evidence or has refused to proceed further with such introduction. The right to non-suit in a non-jury case exists up and until the time the court announces its decision and a trial judge may not deprive plaintiff of this right by precipitatedly rendering judgment before plaintiff has completed the introduction of his evidence. Our rules of procedure clearly contemplate that the stage or phase of the trial set aside for the introduction of plaintiff's evidence shall precede the rendition of judgment.

There are, no doubt, authorities from other Anglo-American jurisdictions which would support, in principle at least, the trial court's action in this case. Good reasons may be advanced to support the desirability of permitting such procedure. I suppose that by this practice the time of the trial court would be conserved and justice would more speedily overtake the unsuccessful litigant and his ill-founded cause. See Oscanyan v. Winchester Repeating Arms Company, 103 U.S. 261, 26 L.Ed. 539, relating to the New York Practice of instructing verdict at conclusion of plaintiff's opening statement.

The Texas non-suit practice, now embodied in Rule 164, has been criticized as a time waster, permitting, as it does, the repeated filing of unfounded suits until such filings are restricted by the equity arm. Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600. The rule, however, has not been changed. Corder v. Corder, Tex. Civ. App. 189 S.W.2d 100, writ refused. It may be that litigants and their lawyers prefer the practice which allows them the opportunity of deciding after their evidence is in whether to take a non-suit or rest their case. There are undoubtedly others who hold that the greater good comes from a careful avoidance of the appearance of the denial of a full and fair hearing to a petitioner before a judicial tribunal.

However that may be, I take it that by adopting procedural rules of the same verbiage as that formerly contained in statutes, the Supreme Court did not thereby seek to engraft upon the scheme of Texas practice all of the various procedures in force in sister jurisdictions relating to summary judgments, involuntary non-suits with prejudice, and kindred matters. Until appropriate action is taken by the Supreme Court under the rule making power to provide for a change in procedural processes, the trial of a case must conform to the provisions of the rules as now written. This calls for a reversal of the judgment appealed from.

If it be true, as I believe it is, that the trial court was unauthorized to render the kind of a judgment that was rendered, at the particular time such decision was announced, then it naturally follows that an application of the provisions of Rule 434, Rules of Civil Procedure, will not prevent the error from being a reversible one. The error was in rendering a judgment, and it follows, although somewhat in the nature of an understatement, that such error (the premature rendering of a judgment) "was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case."

It is further my opinion that plaintiff and his attorney were not required to do more than they did do in the trial court to save the point which is urged as reversible error here. Certainly, plaintiff was not required to prepare and have allowed some species of a bill of exceptions. The error of the trial court appears upon the face of the judgment and generally the purpose of a bill of exceptions is to show some action taken in the trial court which does not otherwise appear of record.

Since there is no rule or law which authorizes a trial court to render a judgment at the point in the trial and under the circumstances disclosed by this record, it follows that there is no particular rule which prescribes what plaintiff must or may do when confronted by such action. I do not believe that this Court, in order to save the judgment, is authorized to first lay down a rule prescribing what plaintiff should have done and then hold that plaintiff by failing to follow such designated procedure has no right to contend that the error was reversible in nature. To repeat in a repetitious way, the whole point in this case is that the trial court was not authorized to render the judgment it did render at the time it did render such judgment. In my opinion, the judgment should be reversed and the cause remanded.