Burns v. Skelton

• Citation: 68 S.W. 527
• Parties: BURNS et al. v. SKELTON.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 14 May 1902
• Court: Court of Appeals of Texas

68 S.W. 527

BURNS et al. v. SKELTON.¹

Court of Civil Appeals of Texas.

May 14, 1902.

Appeal from district court, Dallas county; T. F. Nash, Judge.

Application for mandamus by J. H. & A. H. Burns against J. M. Skelton. Judgment denying the writ, and petitioners appeal. Affirmed.

Morris & Crow, for appellants. Hielrant & Scott, for appellee.

NEILL, J.

This is an application for a writ of mandamus brought by appellants to compel appellee, J. M. Skelton, justice of the peace of precinct No. 1 of Dallas county, to issue an execution on a judgment rendered in the justice court of his precinct on July 24, 1891, for $147.40, in favor of appellants against R. T. Smith, but of which no entry was made until the 31st day of August, 1901, when it was entered nunc pro tunc as of the day (July 24, 1891) when it was rendered. No execution was ever issued upon the judgment. After the nunc pro tunc entry of the judgment, appellants applied to appellee, the justice of the court in which the judgment was rendered, for a writ of execution, which he declined and refused to issue. The application of appellants to the district court to compel him to issue such execution upon hearing was refused, and from its judgment refusing to award the writ of mandamus prayed for this appeal is prosecuted.

The appellants contend that the judgment was not in force and operative as a judgment until the 31st day of August, 1901, when it was entered on the docket or minutes of the court, and that until that date no execution could have been issued. "On the eleventh day after the rendition of any final judgment, if the case has not been appealed and no stay of execution has been granted, it shall be the duty of the justice to issue an execution for the enforcement of such judgment and the collection of the costs." Article 1661, Rev. St. 1895. "If no execution is issued within twelve months after the rendition of the judgment, the judgment shall become dormant, and no execution shall issue thereon unless such judgment be revived." Article 1664, Id. "A judgment in any court of record within this state, where execution has not issued within twelve months after the rendition of the judgment may be revived by scire facias, or an action of debt brought thereon within ten years after the date of judgment, and not after." "The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestible evidence of the sentence given, and designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation. In the nature of things, a judgment must be rendered before it can be entered. And not only that, but, though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor does its...