Berry v. American Rio Grande Land & Irrigation Co.

ELY, C. J.

Appellant has filed a motion asking this court to reverse the judgment and remand this cause for want of jurisdiction, because the same was tried when the court could not be and was not in regular scission. The cause was heard by the trial judge on' exceptions on April 13, 1921, when the regular term1 had expired by law on April 9, 1921. No order of extension of the term appears in the record, but clearly the case was disposed of in vacation. There is no written agreement in the record that the case should be tried by the judge in vacation. Under the provisions of article 1714, Rev. St., however, any cause except a divorce case may be tried without a jury, before the judge, upon the consent of parties, and he is given authority to enter final judgment and make all necessary orders. No written agreement to try the case is indicated by the record, nor is it required by the statute; but any action of the parties clearly evincing a willingness to try the case would be sufficient under the statute. Nothing could more strongly show consent for the trial to take place than for both parties to voluntarily engage in the trial and offer no objection to the case being tried. This is the case made by the record. Finney v. Walker, 144 S. W. 679 .

This court, on the face of the record, has jurisdiction to hear this cause, but if it did not have such jurisdiction it could not entertain a motion to reverse and remand, as in that situation it could only dismiss the appeal.

The motion is overruled.