Bridgman v. Moore

• Decision Date: 18 September 1947
• Docket Number: No. 4422.,4422.
• Citation: 206 S.W.2d 871
• Parties: BRIDGMAN et al. v. MOORE et al.
• Court: Texas Court of Appeals

206 S.W.2d 871

BRIDGMAN et al. v. MOORE et al.

No. 4422.

Court of Civil Appeals of Texas. Beaumont.

September 18, 1947.

Rehearing Denied November 6, 1947.

Motion for Rehearing on Motion for Rehearing Overruled December 10, 1947.

Appeal from District Court, Jefferson County; W. Tom Kenna, Judge.

Consolidated actions by Mrs. F. W. Bridgman, individually and as administratrix of the estate of Amanda Moore, deceased, against W. T. Moore to recover rentals for and damages to certain lands, in which defendant filed a cross-action against plaintiff and others to establish his title to an undivided interest in the lands and recover the value of improvements erected thereon by defendant. From a nunc pro tunc judgment on a jury's verdict for defendant, plaintiff appeals.

Judgment set aside and vacated.

O'Fiel & O'Fiel, of Beaumont, for appellant.

Barnes & Barnes, of Beaumont, for appellee.

WALKER, Justice.

This appeal was taken from a nunc pro tunc judgment of the District Court of Jefferson County, rendered on June 21, 1946, in consolidated Cause No. 56,237/56,793 in that court, "for and as of the 3rd day of July, A.D.1942."

This is the second appeal in this consolidated cause. The first appeal was adjudicated in Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, affirming the decision of this court, reported under the same style at, Tex.Civ.App., 180 S.W.2d 211.

We make the following statement from the record as a basis for our judgment:

Causes 56,237 and 56,793 were consolidated by the trial court on June 16, 1942. The plaintiff therein was Mrs. F. W. Bridgman, individually and as administratrix of the estate of Amanda Moore, deceased (Mrs. Bridgman is appellant on this appeal). The defendant in the consolidated cause was W. T. Moore, one of the appellees here. The said W. T. Moore was also cross-plaintiff in a cross-action against Mrs. Bridgman and against two others, H. E. Moore and Mrs. Hattie Nolan. In substance, the consolidated cause involved the conflicting claims of W. T. Moore and Mrs. Bridgman to an undivided 1/8 th interest in Tracts 40 and 63 in the David Choate League, in Jefferson County, and to related matters. W. T. Moore asserted title to this undivided 1/8 th interest and to the value of certain improvements erected upon the land. Mrs. Bridgman asserted title to all of the land, denied Moore's claim for improvements, and sought recovery from Moore of rentals and damages. The cross-defendants H. E. Moore and Mrs. Nolan had originally owned undivided interests in the aforesaid tracts, as had Mrs. Bridgman, but Mrs. Bridgman acquired the interests of H. E. Moore and of Hattie Nolan before judgment and her title to an undivided 7/8 ths of the land was not disputed when judgment was rendered.

The consolidated cause was tried to a jury, beginning on June 16, 1942, the date of the consolidation. The trial court's charge was apparently submitted to the jury on June 19, 1942, and the verdict was returned on June 20, 1942. On July 3, 1942, the trial court rendered judgment (on this verdict and on certain independent conclusions regarding issues which were not submitted to the jury) in behalf of W. T. Moore, decreeing him a recovery of an undivided 1/8 th of the land and directing a partition between him and Mrs. Bridgman, to whom the remaining 7/8 ths of the land was adjudged. This judgment also awarded W. T. Moore a recovery of $673.75 from Mrs. Bridgman, for the value of improvements erected on the land by him, and fixed a lien upon Mrs. Bridgman's title to secure the payment of this sum.

Under the terms of Rule 330, Texas Rules of Civil Procedure, this judgment became final 30 days after its rendition, and subsequent to the expiration of this thirty days various motions were filed in the trial court under which the trial court first made an order setting aside the judgment of July 3, 1942, and still later, on September 18, 1942, approved a second judgment which was identical with that of July 3, 1942. We have taken the facts respecting these proceedings after July 3, 1942, from the opinion in Bridgman v. Moore, 183 S.W.2d 705, where the validity of these proceedings was adjudicated and the judgment of September 18, 1942, was held to be void. It is recited in the nunc pro tunc judgment from which the present appeal was taken that the judgment of July 3, 1942, was "signed by the trial judge at his home away from the court house" and that on the Bill of Review to which we refer below "it was found and determined that Plaintiff's counsel and Plaintiff (This Plaintiff is Mrs. F. W. Bridgman) did not know of said entry of said judgment until too late to file a motion for a new trial or to appeal therefrom." These findings are consistent with the facts assumed by the Commission of Appeals on the first appeal, where the Court held that the judgment of July 3, 1942, was irregular but not void, and that plaintiff (Mrs. F. W. Bridgman) must seek relief from that judgment in an independent suit in the nature of a Bill of Review.

Mrs. Bridgman accordingly filed an independent suit in the trial court, towit, No. 58,633, against W. T. Moore and against B. E. Quinn, who had purchased the title of Moore in the meanwhile, alleging among numerous other matters the aforesaid irregularity attending the rendition and entry of the judgment of July 3, 1942, in the consolidated cause, her lack of notice of this judgment and her loss of a right to move for new trial and to take an appeal from the judgment of July 3, 1942. She prayed that the judgment of July 3, 1942, be set aside, that she have judgment for the land, and for rents, etc., thus tendering for re-determination at least the most important issues raised by her in the consolidated cause. W. T. Moore and B. E. Quinn filed answer, setting up various exceptions, denials and special pleas which need not be described; and on February 15, 1946, after a trial before the court without a jury, the trial court rendered a judgment in behalf of Mrs. Bridgeman against W. T. Moore and B. E. Quinn, setting aside the judgment of July 3, 1942, and the verdict of June 20, 1942, on which that judgment was entered, and awarding Mrs. Bridgman a recovery of title to and possession of all of the land, namely, Tracts 40 and 63 in the David Choate League.

No information respecting this trial of cause No. 58,633 appears in the record before us except as may be inferred from the recitals in the judgment of February 15, 1946, that "matters of fact as well as of law" were submitted to the court, and that the court "heard the pleadings and evidence."

Thereafter defendants Moore and Quinn moved for a new trial in Cause No. 58,633, and on April 27, 1946, the trial court made an order granting this motion, as amended, and setting aside the judgment of February 15, 1946. This order, however, purported to go further and, reciting that a new trial had been had, to set aside the judgment of July 3, 1942, rendered in the consolidated cause; and it must be inferred from the recitations made in the nunc pro tunc judgment appealed from that this part of the order of April 27th was based upon the irregular manner in which the judgment of July 3, 1942, was rendered and entered, and upon the injury resulting therefrom to appellant Mrs. Bridgman. The order closed with a declaration that motions would next be heard in the consolidated cause for the entry therein of judgment nunc pro tunc. The relevant portion of this order reads:

"It is—on this the 27th day of April, A. D. 1946, considered, ordered, adjudged and decreed by the Court that said Amended Motion for a New Trial be and it is hereby sustained insofar as is necessary to grant a new trial, and the judgment of this court rendered and entered herein on February 15, 1946, be and it is hereby set aside and held for naught, and a new trial is granted herein, and upon granting a New Trial herein it is further considered, ordered, adjudged and decreed that the judgment complained of in this Bill of Review, which Judgment was entered on July 3, 1942, in consolidated causes No. 56,237, Mrs. F. W. Bridgman et al. v. W. T. Moore, and No. 56,793, Mrs. Mertie Bridgman v. W. T. Moore, on the docket of this court, be and it is hereby set aside and held for naught; and it is further decreed that in said consolidated causes a Motion or Motions will now be heard on the entry of a judgment on the verdict of the jury nunc pro tunc, which verdict of the jury was filed in consolidated causes No. 56,237 and No. 56,793, Mrs. F. W. Bridgman v. W. T. Moore, on June 20, 1942, signed by Elmer Dawson, foreman."

On June 4, 1946, a motion was filed in the consolidated cause by "the defendants" (presumably W. T. Moore and B. E. Quinn), praying that judgment be entered nunc pro tunc on the verdict returned in that cause on June 20, 1942.

On June 21, 1946, the trial court granted this motion and entered nunc pro tunc the judgment from which this appeal was taken. In legal effect (as regards its provisions) it is the equivalent of the judgment of July 3, 1942. This nunc pro tunc judgment was entered upon the theory that the original judgment of July 3, 1942 in the consolidated cause had actually been set aside by the order of April 27, 1946 in Cause No. 58,633, but that the verdict of June 20, 1942, had not been set aside and that a nunc pro tune entry would give appellant the opportunity to move for a new trial and to take an appeal in the consolidated cause, privileges of which she had been deprived by the irregular rendition and entry of the judgment of July 3, 1942.

Under Points 1, 2, 3, & 4, appellant, Mrs. F. W. Bridgman, has assigned error to the entry of the nunc pro tunc judgment. These points raise the issue that this judgment was absolutely void. Appellant has also assigned error to various proceedings had on the trial of the consolidated cause in June, 1942, presumably on the theory that if the nunc pro tunc judgment was valid then the incidents of this...