Campbell v. Hart

• Decision Date: 13 February 1953
• Docket Number: No. 15406,15406
• Parties: CAMPBELL v. HART.
• Court: Texas Court of Appeals

Page 255

256 S.W.2d 255

CAMPBELL v. HART.

No. 15406.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 13, 1953.

Rehearing Denied March 13, 1953.

Charles L. Morgan and John T. Gano, both of Fort Worth, for appellant.

Dell Barber and Perry Barber, of Colorado City, and Clyde & Barnes, of Fort Worth, for appellee.

BOYD, Justice.

This is a suit for damages instituted by appellee T. C. Hart, as plaintiff, against appellant Francis K. Campbell, as defendant, growing out of an alleged breach of contract to purchase a mineral interest in a tract of land in Mitchell County, the amount sued for representing the difference between the contract price and the market value of the interest at the time of the alleged breach. Upon a verdict of the jury, judgment was rendered for the plaintiff for $18,000, and the defendant appeals.

Appellee has filed a motion to dismiss the appeal, in which it is alleged that this court has no jurisdiction of the attempted appeal because, he alleges, the judgment was rendered in the trial court on the 29th day of May, 1952, and appellant's original motion for new trial was not filed within ten days after that date, as required by Rule 330(k), Texas Rules of Civil Procedure; that since the motion for new trial was a nullity, the time for perfecting the various steps of the appeal began to run from the date of the judgment, and not from the date appellant's motion for new trial was overruled; that the statement of facts was not filed in the trial court within fifty days from the date of the judgment and not filed in this court within sixty days from the date of the judgment, and that notice of appeal was not given within ten days from the date of the judgment, and the appeal bond was not filed within thirty days from the date of the judgment. Appellant has filed a motion for leave to file a supplemental transcript, which brings up the judgment 'as corrected' by the trial court. The changes made consisted of the following: The last paragraph of the original entry began, 'It is therefore ordered, adjudged and decreed by the Court, on this the 29th day of May, 1952,' and ends, 'Entered June 16, 1952,' and as corrected, these recitals are, 'It is therefore ordered, adjudged and decreed by the Court, on this the 16th day of June, 1952,' and 'Entered June 16, 1952. Signed, entered and rendered on June 16, 1952.'

Appellant's original motion for new trial was filed on June 25, 1952; his amended motion for new trial was filed on July 14; motion for new trial was overruled and notice of appeal was given on August 8; the appeal bond was filed on September 6; the statement of facts was filed in the trial court on September 24; and in this court on October 6. So it will be seen that if the judgment was rendered on June 16, the various steps for perfecting the appeal were taken in time.

The record does not show whether the judgment was corrected during or after the term.

Appellee contends that the trial court was powerless to correct the judgment because the judgment became final thirty days after May 29, and that under Rule 330(l), T.R.C.P., the matter could be reached only by bill of review.

We think the authorities fully sustain the action of the court in making the corrections in the judgment during or after the term, and before or after appeal was perfected to this court. 25 Tex.Jur., pp. 524, 528; Bray et ux. v. Clark, Tex.Civ.App., 9 S.W.2d 203, error dismissed; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Panhandle Construction Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068; O'Daniel v. Libal, Tex.Civ.App., 196 S.W.2d 211; Glasscock v. Bryant, Tex.Civ.App., 185 S.W.2d 595, refused w. m.; Townes v. Lattimore, 114 Tex. 511, 272 S.W. 435; Hooker v. Williamson, 60 Tex. 524.

'In the absence of a statute to the contrary, a court has full control over its orders or judgments during the term at which they are made, and may, on sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, supplement, open, or vacate such judgments, at least where the court is a court of general jurisdiction. This power is inherent and exists independently of any statute. * * * The perfection of an appeal during the term does not deprive the court of this power.' 49 C.J.S., Judgments, § 229, page 436. See Texas cases cited in note 7 under said section.

In O'Daniel v. Libal, supra (196 S.W.2d 215), it is said: 'The court has the inherent power, during the term at which its judgment is pronounced and rendered and even after appeal is perfected, to have its records speak the truth by entering of record the judgment that was actually pronounced and rendered in open court. See 34 C.J., p. 235, where it is stated: 'If anything has been omitted from the judgment which is necessarily or properly a part of it, and which was intended and understood to be a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or counsel, or the clerk, the omission may be supplied by an amendment even after the term.' * * *'

In Coleman v. Zapp, supra (105 Tex. 491, 151 S.W. 1041), Chief Justice Phillips of our Supreme Court uses the following language:

'A proceeding of such character, whose only purpose is to have the judgment entry speak truly the judgment as rendered, neither asserts nor seeks the enforcement of any new right. It presents no issue between the parties except in respect to the accuracy of the record, and otherwise involves the adjudication of nothing between them. It is powerless to reopen the controversy as closed and sealed by the judgment, and makes no such attempt. The inquiry under it is not what judgment might or ought to have been rendered, but only what judgment was rendered; and such is the sole issue to be determined. If an amended or corrected entry be ordered, the status of the parties and their relative rights, as decreed and fixed by the judgment, remains untouched and unaltered, in no sense adjudicated anew, but only judicially evidenced as originally determined. The result is that only that is done by the court which it had the inherent power to originally do as a part of its decision of the case, and which it would have done in the interest of a truthful record.

'It is as much the concern and duty of the court to have its records faithfully recite its judgments as it is to render the judgments themselves, and for that reason it is held that its jurisdiction over its records does not end with the term. In this sense a case is regarded as pending until the judgment rendered is correctly recorded. It is the right of parties to have such a record; and it ought not to be the law, and in our opinion it is not the law, that they are under the necessity of instituting an independent suit to obtain it.'

Rule 330(l) has no application to proceedings to make the judgment entry speak the truth. It merely provides that the judgment becomes as final after thirty days as if the term of court had expired, and that it cannot be set aside after that time except by bill of review. A proceeding to correct the record of a judgment is not a proceeding to set it aside. Rule 330(l) is in the exact language of art. 2092(30), (30), which was under consideration when Chief Justice Cureton, speaking for the Supreme Court in Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1082, 48 A.L.R. 355, said: '* * * The power of a court to correct inadvertent judgment entries or irregularities which find place upon its minutes without authority or judicial action is one which does not rest upon legislative acts, and cannot be destroyed by legislative authority. That power of the court is derived from the Constitution, which creates it. The power of the court to make its minutes speak the truth as to what the court has actually done is beyond legislative limitation or control, unless, of course, under some principle of estoppel, rights of third parties may have intervened. In consequence of this doctrine, it is established law that statutes such as the one quoted above, limiting the power of courts within a certain period of time to control their judgments, have no application to the organic power of courts to correct nonjudicial mistakes in their proceedings, or to annul orders and judgments inadvertently or improperly entered of record. Freeman on Judgments (5th Ed.), Vol. 1, §§ 216, 217, 218, 219, 220, 226; Coleman v. Zapp, 105 Tex. 491, 494, 151 S.W. 1040; Burnett v. State, 14 Tex. (455) 456, 65 Am.Dec. 131; Whittaker v. Gee, 63 Tex. 435; Mouser v. First National Bank, Tex.Civ.App., 197 S.W. 1000; Moore v. Toyah Valley Irr. Co., Tex.Civ.App., 179 S.W. 550; Gerlach Mercantil Co. v. Hughes-Bozarth-Anderson Co., Tex.Civ.App., 189 S.W. 784; Mausel (Mansel) v. Castles, Tex.Civ.App., 54 S.W. 299. See many cases in the notes to Vernon's Ann.Civ.St.1925, art. 2228.' Rule 316, T.R.C.P., provides, 'Mistakes in the record of any judgment or decree may be amended by the judge in open court according to the truth or justice of the case after notice of the application therefor has been given to the parties interested in such judgment or decree, and thereafter the execution shall conform to the judgment as amended.'

Appellee does not complain that the action of the trial court was had without proper motion, notice and hearing. In any event, in the absence of the record we must presume the regularity of the actions of that court. Hannon v. Henson, Tex.Com.App., 15 S.W.2d 579; 31 C.J.S., Evidence, § 145, page 792.

Appellant's motion for leave to file the supplemental transcript is hereby granted and appellee's motion to dismiss the appeal is overruled.

Appellant and appellee entered into a written contract on July 4, 1949, as follows:

'Mr. T. C. Hart

'Westbrook, Texas

'Dear Mr. Hart:

'This will confirm our agreement, wherein I agree to buy and you agree to sell and deliver to me, One-Fourth of the minerals under your 160 acres of land in Mitchell County, texas, described as the...