Blum v. Neilson
| Decision Date | 04 May 1883 |
| Docket Number | Case No. 4873. |
| Court | Texas Supreme Court |
| Parties | LEON & H. BLUM v. P. H. NEILSON. |
OPINION TEXT STARTS HERE
APPEAL from Eastland. Tried below before the Hon. E. B. Wheeler.
Scott & Levi, for appellants.
Frank B. Stanley, also for appellants.
T. H. Connor and Fleming & Moore, for appellee.
A motion has been filed by counsel for appellee to strike out the statement of facts in this cause because there appears in the transcript no order entered up by the district court during the term at which the cause was tried, allowing a statement of facts to be made up and filed, as this one appears to be, after the adjournment of the court for the term.
It appears, however, that at the succeeding term of the court, on application of appellants, a nunc pro tunc order was entered up, granting the proper leave in reference to making and filing the statement of facts. In support of the application no memorandum on the judge's docket, nor from the files of the cause, was produced to sustain the statement made in the application, that the order had been actually granted, but was not entered up through an oversight and mistake of the clerk of the court. Witnesses were examined to establish the truth of this statement in the application, but the judge, in granting it, expressly says that it was personally known to him that the order was in fact made and ordered of record at and during the term at which the cause was tried after notice of appeal had been given by the plaintiffs.
It is contended by appellee that the court had no power to make this order, and that we cannot, therefore, take notice of it, and a bill of exceptions to the action of the court in granting the order brings the point to our attention.
The objections to the action of the court are two: 1. Because the court could not correct the record of a cause after the appeal was perfected; and 2. Because a correction of the kind granted by the court could not be made unless some memorandum of the order sought to be entered nunc pro tunc had been presented at the time it was made.
It has always been the practice in our state, as in others, to allow corrections of judicial records to be made at a term subsequent to that at which they should have been entered. It was said in Ximines v. Ximines, 43 Tex., 463, that the supreme court, by analogy to the principle governing district courts, could at a subsequent term after final judgment correct the minutes of a previous term, so as to make them properly express the action of the court. Whilst the cases cited in the opinion were instances of corrections made before final judgment, the decision of the court clearly includes those where a correction is asked after final...
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Wood v. Paulus, 878
...recollection has the dignity and force of evidence. Ft. Worth & D.C . Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25 (1904); Blum v. Neilson, 59 Tex. 378 (Tex.Sup.1883); Kluck v. Spitzer, 54 S.W.2d 1063 (Tex.Civ.App.--Waco 1932, no writ); Parnell v. Barron, 261 S.W. 529 (Tex.Civ.App.--Amarillo ......
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...v. United States Fid. & Guar. Co. (Tex. Com. App.) 255 S. W. 388; F. W. & D. C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S. W. 25; Blum v. Neilson, 59 Tex. 378; Hickey et ux. v. Behrens, 75 Tex. 488, 12 S. W. 679; Kittrell v. Fuller, Knight v. Waggoner, and Moore v. Toyah Valley Irr. Co., Further......
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...of facts has the dignity and force of evidence. Ft. Worth & D.C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25, 26 (1904); Blum v. Neilson, 59 Tex. 378 (1883); Wood v. Paulus, 524 S.W.2d 749, 756 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd Even though it is presumed that the trial judge's pe......
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