Burrell v. Cornelius
| Decision Date | 12 July 1978 |
| Docket Number | No. B-7303,B-7303 |
| Citation | 570 S.W.2d 382 |
| Parties | Melba Rheudell BURRELL, Petitioner, v. J. R. CORNELIUS, Individually, et al., Respondents. |
| Court | Texas Supreme Court |
Kasmir, Willingham & Krage, Ben L. Krage, Dallas, for petitioner.
Lovelace & Thompson, Inc., Joe W. Lovelace, Linden, Zeleskey, Cornelius, Rogers, Berry & Hallmark, James R. Cornelius, Jr., Lufkin, for respondents.
Melba Burrell instituted suit against J. R. Cornelius individually and doing business as the C. & H. Abstract Company to recover a sum equal to one-half of the proceeds from the sale of what she says was a community homestead. She asserts that defendant wrongfully disbursed her share of the funds to other persons. The defendant Cornelius answered, filed a counterclaim against the plaintiff, and also filed a third-party action against Ben L. Krage. Defendant Cornelius then filed a motion for summary judgment, and the trial court rendered an interlocutory summary judgment that the plaintiff take nothing. Defendant Cornelius later filed a motion for non-suit on his cross-action and third-party action which the court granted, making final the interlocutory summary judgment.
The court of civil appeals, being of the opinion that Mrs. Burrell had not timely filed her motion for new trial, dismissed her appeal. The omission of the date that the judge signed the order making final the summary judgment has created this appellate problem. 1 The order states that the motion for non-suit was considered on January 20, 1977, but it is silent about the date the judge signed the order. Plaintiff Burrell did not file her motion for new trial until February 3, 1977, and since a motion for new trial must be filed within ten days (Tex.R.Civ.P. 329b), the motion was out of time if January 20 was the date from which appeal time must be counted. 2 The court of civil appeals so ruled and dismissed the appeal. 559 S.W.2d 96. We reverse the judgment of the court of civil appeals and remand the cause to that court to dispose of the cause upon the merits.
The trial court's order states that the motion for non-suit came on for consideration "on this 20th day of January, 1977," but the clerk's file date that was written on the motion for non-suit shows that the motion itself was not filed until January 27. Tex.Rev.Civ.Stat.Ann. art. 1899. January 20 was an impossible date either for the court to have considered or to have rendered judgment on the motion for non-suit that was not yet filed. January 27 was the earliest possible date that the trial judge could have ruled upon the motion for non-suit, and since the motion for new trial was filed on February 3, it was well within the ten days required by Rule 329b. All other appellate steps, when dated from February 3, were timely and need not here be detailed. We hold, therefore, that appellant Burrell timely perfected her appeal.
The intended purpose for Rule 306a, Tex.R.Civ.P., is to fix a date certain from which appellate steps can be taken. 3 The judgments and orders that come before this court show that some members of the bench and trial bar, as in this case, are careless in the observance of the rule. The current Judges render judgment; clerks enter them on the minutes. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). The entry of a judgment is the clerk's record in the minutes of the court. "Entered" is synonymous with neither "Signed" nor "Rendered." Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945); Polis v. Alford, 267 S.W.2d 918 (Tex.Civ.App. San Antonio 1954, no writ). The day a judge signs an order is frequently, perhaps usually, after the time the judgment is rendered and surely it is before the judgment is entered. 4 R. McDonald, Texas Civil Practice § 17.06 (1971). Rule 306a says that time commences to run for appellate steps when the judge "signs" the order. Fortunately in this case, the clerk's official notation of the filing date on the motion for non-suit supplies official information showing that the appellant timely filed her motion for new trial. The court also corrected the date in the judgment as a clerical error by changing the January 20 date to January 27. Rule 306a states that the date of rendition of a judgment may be otherwise shown of record in the event the date of signing of a judgment or order is not shown as required by the rule.
form books contribute to the problem and need to be corrected and revised to conform with the rule that was adopted in 1946. Many forms that are still published as correct examples are really appellate snares and traps. The rule is not satisfied by a...
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...by contrast, are drafted and signed by the clerk;10 judges rarely even see them. As Justice Pope wrote for this Court 30 years ago in Burrell v. Cornelius: "Judges render judgment; clerks enter them on the minutes."11 Our decisions should take effect when the justices act, not the Second, t......
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Ortiz v. O. J. Beck & Sons, Inc.
...signing, filing, and entry of judgments. Imprecise use of these terms causes confusion, and should be avoided. See Burrell v. Cornelius, 570 S.W.2d 382 (Tex.1978). "Rendition" is a judicial act by which the court settles and declares publicall the decision of the law upon the matters at iss......
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Miller v. State
...491, 151 S.W. 1040, 1041 3 (1912), and "entry" is not synonymous with "signed" when used in relation to a judgment, Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex.1978), Rosenfield v. Hull, 304 S.W.2d 571, 572 (Tex.Civ.App.--Texarkana, 1957, writ ref'd) and Mathis I.S.D. v. Odem I.S.D., 222......
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In re Ruiz
...the Family Code unless otherwise indicated. 3. Rendition of judgment and entry of judgment are distinct actions. See Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978); Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex. App.--Waco 1988, no writ). Judgments usually go through three......