Cockburn v. Hightower

• Decision Date: 01 June 1932
• Docket Number: No. 10069.,10069.
• Citation: 52 S.W.2d 365
• Parties: COCKBURN et al. v. HIGHTOWER, Chief Justice, et al.
• Court: Texas Supreme Court

Page 365

52 S.W.2d 365

COCKBURN et al. v. HIGHTOWER, Chief Justice, et al.

No. 10069.

Supreme Court of Texas.

June 1, 1932.

Motion by H. C. Cockburn and another for leave to file application for mandamus to issue to Lewis P. Hightower, Chief Justice of the Court of Civil Appeals of the Ninth District, and others.

Motion overruled.

Barkley & Webb and Robert L. Sonfield, all of Houston, for relators.

SHORT, C.

The relators, H. C. Cockburn and C. E. Gates, have filed a motion asking leave to file an application for a writ of mandamus to issue to the members of the Court of Civil Appeals of the Ninth district and to the clerk thereof, as well as a writ of prohibition prohibiting them from taking any action in a certain cause on the docket of said court, pending a determination of the proceedings for the issuance for the writ of mandamus.

There was a consolidation of two suits tried in one of the district courts of Harris county and a final judgment entered in favor of the plaintiff in those suits for certain sums of money against certain defendants. The motion for a new trial having been overruled, the defendants in that consolidated suit prosecuted an appeal to the Court of Civil Appeals, and, among other things filed a supersedeas bond with the relators, Cockburn and Gates, as sureties.

On June 18, 1931, the Court of Civil Appeals at Beaumont rendered its judgment reversing the judgment of the trial court as to some of the appellants, and, as to others, affirmed it. This judgment of affirmance omitted the rendition of any judgment against these relators as sureties on the supersedeas bond. On October 4, 1931, the term of court at which the above judgment in said cause was rendered had expired, and on January 28, 1932, the plaintiff in the original suit, who was the defendant in error in the Court of Civil Appeals, filed in the latter court what he terms "motion of defendant in error, Ples B. Kinnerly to correct entry of judgment on minutes," wherein he prayed that the judgment of the Court of Civil Appeals entered on June 18, 1931, be corrected nunc pro tunc so as to give a judgment against the relators herein as sureties on said supersedeas writ of error bond.

On January 24, 1932, the Court of Civil Appeals at Beaumont granted the motion and amended its prior judgment nunc pro tunc so as to have the judgment recite a recovery against the relators herein as sureties on the supersedeas bond.

An effort was made by filing an application for rehearing to have this latter order of the court set aside. This application was overruled.

It is the contention of the relators that, by reason of the fact that the term of court at which the original judgment entered herein had expired, the Court of Civil Appeals did not have the jurisdiction or authority to amend the original judgment so as to include a judgment against the relators as sureties on the supersedeas bond, contending that the change so made amounts to the rendition of a new judgment which the court was without authority to do.

The legal question presented is whether the action of the Court of Civil Appeals, of which complaint is made, is in the nature of a judicial act or whether it is a mere ministerial one. If the former, then, under the decisions, the power of the Court of Civil Appeals to alter its final judgment rendered at a previous term had expired when the action was taken of which complaint was made. If the latter, then the court had the power to do what it did do. We have concluded that, when the court rendered judgment against the principals for the moneys adjudged, the law then fixed the liability of the sureties on the supersedeas bond, and the mere failure of the court to take cognizance of the facts shown by the record without dispute and to enter judgment, which the...