Accousi v. G. A. Stowers Furniture Co.

• Decision Date: 14 December 1904
• Citation: 83 S.W. 1104
• Parties: ACCOUSI v. G. A. STOWERS FURNITURE CO.
• Court: Texas Court of Appeals

83 S.W. 1104

ACCOUSI v. G. A. STOWERS FURNITURE CO.

Court of Civil Appeals of Texas.

December 14, 1904.

Error from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Frank Accousi against the G. A. Stowers Furniture Company. Judgment for defendant by nunc pro tunc entry, and plaintiff brings error. Dismissed.

D. J. Powell, for plaintiff in error. Nat. B. Jones, for defendant in error.

NEILL, J.

This is a writ of error from a supposed judgment purporting to have been rendered in favor of defendant in error in this suit, which was brought by Accousi against defendant in error to recover damages for personal injuries alleged to have been inflicted by the negligence of the latter. The assignments of error are predicated upon a purported statement of facts and bills of exception, which defendant in error contends should all be stricken from the record and not considered, because they were not filed during the term of court at which the judgment sought to be reviewed was rendered; the record not authentically showing that 20 days or any time was granted plaintiff in error from the adjournment of the court in which to have approved and filed, as a part of the record, a statement of facts and bills of exception. Having been led by this objection to examine the record, we find on July 18, 1904, orders purporting to be of the court in which this suit was pending, which are as follows: (1) "On this July the 8th, it appearing to the court that judgment was rendered in this cause on the 10th day of May, 1904 (same being the April term, 1904, of this court), that the said judgment was not entered in the minutes of said court, it is now ordered that said judgment be now entered in the minutes of this court as of that date, to wit, May 10, 1904." (2) "On this July 18, 1904, it appearing to the court that an order was rendered in this case on June 4, A. D. 1904 (same being the June term of this court), overruling plaintiff's first amended motion for a new trial; that said order was not entered on the minutes of said court—it is now ordered that said order be entered on the minutes of this court as of that date, to wit, June 4, 1904." We find that in pursuance of these orders the judgment and order overruling said motion for a new trial were entered nunc pro tunc. In the entry of the latter order, after stating that the motion for a new trial is overruled, this appears: "And thereupon plaintiff, by attorney, duly excepted to the said order and ruling, and gave notice in open court of appeal to the Court of Civil Appeals for the Fourth Supreme Judicial District; and the court further orders that the parties hereto shall have 20 days after the adjournment of the court in which to file a statement of facts and bills of exception." However, there seems to have been no order of the court authorizing entries nunc pro tunc of notice of appeal, or the order granting the parties 20 days after adjournment of the court in which to file the statement of facts and bills of exception. We judicially know that none of these orders was entered at a regular term of the district court of the Fifty-Seventh Judicial District. 26 Leg. p. 112, c. 75. There is nothing in the record to show that they were made at a special term of the court, and, in the absence of such showing, we cannot presume that they were. They must therefore be taken and considered as made in vacation.

These orders were judicial acts. The law is that where a judicial act, such as a judgment, decree, or order, was made at a particular term, which failed of entry in the minutes, the court has...