Summary
In National Casualty Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908 (1953), the court addressed the issue of loss of a trial court's jurisdiction in a specific case.
Summary of this case from Buice v. StateOpinion
No. 38954.
November 23, 1953.
1. New trial — judge may grant — when.
A judge may, on his own motion, order a new trial as long as he has jurisdiction, at any time during the term at which the verdict or judgment was rendered, but not thereafter.
2. New trial — jurisdiction — to grant.
It is essential that the Court have jurisdiction in order to grant a new trial to the same extent as when the original judgment was entered, and, if jurisdiction of the parties or the subject matter has been lost after the entry of the original judgment, an order granting a new trial is void.
3. New trial — motion for — filed when.
A motion for a new trial must be filed prior to adjournment of Court for when a term of court has finally adjourned, a party's right to file a motion for a new trial ends, and any action of the Trial Judge in reference to such a motion filed after adjournment of the term, is of no effect.
4. Continuance — none granted — after final judgment — setting aside judgment — at succeeding term — a nullity.
Judge of county court did not have power on his own motion to continue to succeeding term a cause in which final judgment for defendant had already been entered, and action of county court in setting aside original judgment at succeeding term and entering judgment for plaintiff was a nullity.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, J.
Hannah, Simrall Aultman, Hattiesburg, for appellant.
I. The County Court of Forrest County, Mississippi, had no jurisdiction to enter the pretended judgment dated January 13, 1951. It is to be remembered that on January 13, 1951, during the January term of the Court, the County Court sought to set aside a judgment which had properly been entered on a jury verdict at the December 1950 term of the Court. At the adjournment of the December 1950 term of the Court, there was no motion pending before the Court, and at the conclusion of that term of the Court, the County Court lost jurisdiction over the subject matter. There was nothing before the Court which could have been the proper subject matter of continuance. Sagory v. Bayless, 21 Miss. 153, 13 Sm. M. 153; Walton v. State, 147 Miss. 851, 112 So. 790; Sec. 1613, Code 1942, as amended; Chap. 319, Laws 1950; 21 C.J.S., Courts, Sec. 151 p. 151.
II. If otherwise valid, the pretended judgment of the County Court of Forrest County dated January 13, 1951, exceeded and surpassed that asked for in appellee's pleadings, and was void. Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298.
III. The pretended judgment dated January 13, 1951, is without process. Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901; Sagory v. Bayless, supra.
IV. The purported judgment of January 13, 1951, attempts to vacate a valid judgment duly and properly entered under date of January 6, 1951, at a preceding term of the Court which was ended on January 8, 1951.
V. Assuming that the purported order had seasonably been entered as of January 6, 1951, instead of January 31, 1951, the same would have been void for the reason that after the jury had returned its verdict and after judgment was entered thereon, there was nothing for the Court to continue. The record will reflect that no motion of any kind or character whatsoever, was filed before the Court after judgment was entered on January 6, and before the term ended. There was, therefore, nothing before the Court which was the subject matter of continuance. Carrier Lbr. Mfg. Co. v. Quitman Co., 156 Miss. 396, 124 So. 437; Cowperthwaite v. Miller (Pa.), 2 Phila. 219; Hugley v. Holstein, 34 Ga. 572; Penn Mut. Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673; R.B. George Machinery Co. v. City of Midland (Texas), 20 S.W.2d 107; Smith v. Deas, 156 Miss. 111, 130 So. 105; Steele v. Palmer, 41 Miss. 88; Thornton v. Malin (Nev.), 229 P.2d 915; U.S.F. G. Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529; Williams v. Humble Oil Rfg. Co. (Texas), 139 S.W.2d 346; 12 Am. Jur. (Accumulated Supp. 1953), Continuances, Sec. 37 p. 52; 17 C.J.S. 257.
VI. The County Court of Forrest County, Mississippi, acted arbitrarily in overruling appellant's motion for a correction of its minutes. Brown v. Sutton, 158 Miss. 78, 121 So. 835.
Wm. V. Murry, Hattiesburg, for appellee.
I. It is undoubtedly true that courts of record have power over their own orders, judgments and decrees during the term at which such orders, judgments and decrees were rendered and may upon proper motion reopen or even set them aside upon a proper showing therefor. The Trial Court entered its order upon the minutes of the December 1950 term of the Court, continuing the cause until the January term for such action as the parties may desire to take in respect thereto. The appellee contends that a proper showing was made for the Court's action in this regard and that by special order, under all of the facts and circumstances, the Court had the right and the authority to continue this case to the following term for the purpose of enabling counsel to file such proper motion as the situation demanded. Be it remembered that the jury returned its verdict about dark on Saturday afternoon, the clerk's office was closed, with the exception of an attendant upon the Court, and expediency dictated that some additional time was essential. The Court entered the order upon the minutes along with the jury verdict and other happenings, and this he did before the minutes were signed and the December term formally closed. G.W. Jones, Receiver v. E.P. Williams, 62 Miss. 183.
II. It is complained that the Trial Court set aside the judgment theretofore rendered and entered judgment for the plaintiff, or appellee. It is further complained that there was no motion pending before the Court at the time of the adjournment ending the December 1950 term thereof. Appellee says in this particular the appellant is wrong. The appellee made his oral motion before the Court on Saturday afternoon, late, immediately after the jury returned its verdict. Such motion may be made orally and is sufficient to support the Court's order granting additional time in which to file a formal written motion, and that was what was done in this case.
III. The appellee denies that the County Court was without jurisdiction at the time it entered the judgment dated January 13, 1951. Childress v. Carley, 92 Miss. 571, 46 So. 164; Ex parte Schoel (Ala.), 87 So. 801; Grant v. State, 189 Miss. 341, 197 So. 826; Johnson v. Edde, 58 Miss. 664; Watson v. State, 166 Miss. 194, 146 So. 122; Williams v. State, 125 Miss. 347, 87 So. 672.
IV. The appellant complains that the judgment rendered January 13, 1951, is void, and offers its reason as being that the Court exceeded the relief asked for in the pleadings. In answer to this, appellee says, first, that there were no pleadings before the Court at that time; that a motion is not a pleading. Baltimore Carolina Line v. Redmond, 295 U.S. 654; Northern Ry. Co. v. Page, 274 U.S. 65; Slocum v. N.Y. Life Ins. Co., 228 U.S. 364; 60 C.J.S. 5, Par. 2; 15 R.C.L. 606; 19 R.C.L. 671; Montgomery's Manual of Federal Jurisdiction Procedure (4th ed.) p. 1135, Rule 50.
V. Appellant complains that the judgment is void for the reason that there was no process supporting it. In the procedure complained of, appellee was following the rules of the County Court and the law governing the procedure in that Court. It is a common practice, and, in fact, the usual practice for motions to be made orally and for the Court to enter its orders based thereon. In the County Court, a matter tried is not concluded finally and the case is still within the jurisdiction of the Trial Court during the term in which the judgment was rendered, except as is modified by statute. Childress v. Carley, supra; Sec. 1616, Code 1942; Rule 7 of the published rules of the County Court of Forrest County, Mississippi.
VI. Only the question of a motion for a new trial or arrest of judgment is here involved, and we earnestly contend that the Court had the authority to continue the cause for the purpose of filing proper motion, and that is what the Court did. 15 C.J. 979, Note (C).
VII. Appellee denies that the Trial Court acted arbitrarily in overruling appellant's motion for a correction of its minutes and would show the truth to be that the judgment in favor of the defendant was set aside by the Trial Court upon the plaintiff's motion on January 13, 1951, and for the next succeeding four terms of the County Court this cause was continued at the request of the appellant and its motion to correct the minutes was not filed until June 9, 1951. Brown v. Sutton, 158 Miss. 78, 121 So. 835.
This was a suit in the County Court of Forrest County by Robert L. Calhoun, Administrator of the Estate of Ezekiel Adams, Deceased, against National Casualty Company to recover the proceeds of an insurance policy in the sum of $1,000 on the life of the decedent. The case was tried on Saturday, January 6, 1951, the last day of the regular December 1950 term of said court. The jury found a verdict for the defendant, and a judgment thereon was duly entered.
No motion for a new trial was filed by the plaintiff prior to the adjournment of the term. However the following order relative to the case appeared on the minutes of that day, to-wit: "It is hereby ordered that the above styled case be and it is hereby continued to the next regular term of this court, that is, the January 1951 term, for such action as the parties hereto or the court may take."
The regular January 1951 term of the court convened on the Second Monday and 8th day of January 1951. On January 10th following, the plaintiff filed a motion for a new trial. The same was heard by the court on January 13th, and sustained, the court holding that plaintiff's requested peremptory instruction should have been granted. Hence the verdict of the jury and the judgment thereon were set aside and judgment for the plaintiff was entered. The defendant brought the record to the circuit court by certiorari and the judgment for the plaintiff was affirmed. The insurance company appealed.
The sole question for decision is whether or not the county court had jurisdiction to hear and sustain, at a term subsequent to that during which an original judgment was entered, a motion for a new trial and a contrary judgment, when no motion for that purpose had been filed prior to the adjournment of the court which awarded the original judgment. (Hn 1) A judge may, on his own motion, order a new trial as long as he has jurisdiction, "at any time during the term at which the verdict or judgment was rendered, but not thereafter." 66 C.J.S., New Trial, Section 115, p. 330.
Besides, (Hn 2) "It is essential that the court have jurisdiction in order to grant a new trial to the same extent as when the original judgment was entered, and, if jurisdiction of the parties or the subject matter has been lost after the entry of the original judgment, an order granting a new trial is void." 66 C.J.S., New Trial, Section 118, p. 334.
Of like effect is the rule set out in 39 Am. Jur., New Trial, Section 182, pp. 184-5, to-wit: "The general rule is that a motion or application for a new trial must be filed with and considered by the trial court during the term at which the judgment complained of was entered. In the absence of a statute, an application for a new trial may not be entertained or granted by the trial court at a time subsequent to the expiration of that term of court. Thereafter, the judgment is deemed to have conferred a vested right which can be divested only by a direct proceeding and for sufficient legal cause in some one of the modes known to the law. Nor may the court reconsider its order after the term has expired."
(Hn 3) There is no reason why the rule in criminal cases should be harsher than in civil cases. In the former, the necessity for filing a motion for a new trial, prior to the adjournment of the court, is imperative, if any relief is to be obtained thereby. See Pittman v. State, 147 Miss. 593, 113 So. 348, where it was said: "When the term of court was finally adjourned, the appellant's right to file a motion for a new trial ended, and any action of the trial judge in reference to such a motion, which was filed after the adjournment of the term, was of no effect, and is not properly a part of this record." See also Dobbs v. State, 200 Miss. 595, 27 So.2d 551.
(Hn 4) Manifestly the judge was without power, on his own motion, to continue to a succeeding term a cause in which a final judgment had already been entered.
Consequently, the action of the county court in setting aside the original judgment and entering judgment for the appellee was a nullity.
It follows then that this cause must be, and is, reversed, and a judgment will be entered here reinstating the original judgment of the county court in favor of appellant, in response to the verdict of the jury.
Reversed and judgment here.
McGehee, C.J., and Arrington, Ethridge and Lotterhos, JJ., concur.