Comet Aluminum Company v. Dibrell, No. B--1729

CourtSupreme Court of Texas
Writing for the CourtCALVERT
Citation450 S.W.2d 56
PartiesCOMET ALUMINUM COMPANY, Inc., Relator, v. Honorable Joe B. DIBRELL et al., Respondents.
Docket NumberNo. B--1729
Decision Date14 January 1970

Page 56

450 S.W.2d 56
COMET ALUMINUM COMPANY, Inc., Relator,
v.
Honorable Joe B. DIBRELL et al., Respondents.
No. B--1729.
Supreme Court of Texas.
Jan. 14, 1970.
Rehearing Denied Feb. 18, 1970.

John H. Holloway, Houston, for relator.

Carr, Osorio, Palmer, Dickson, Long & Coleman, William Dickson, Houston, for respondents.

CALVERT, Chief Justice.

In this original proceeding in this court, relator, Comet Aluminum Company, Inc., seeks a writ of mandamus directing Honorable

Page 57

Joe B. Dibrell, District Judge, one of the respondents, to set aside a nunc pro tunc judgment and a judgment ordering a new trial rendered and entered in Cause No. 689,616, styled Comet Aluminum Company, Inc. v. San Levine, Individually and d/b/a Tele-Sales, on the docket of the 125th Judicial District Court of Harris County. The writ is ordered conditionally issued.

The chronological sequence of events in the suit by Comet against Levine which led to the filing of this proceeding is as follows:

1--9--67: Comet filed its First Amended Original Petition by which it sought a recovery of $4,354.98, alleged to be due on a debt for money lent, 'together with interest thereon at the maximum legal rate from September 12, 1964,' and 'attorney's fees in the sum of $1,000.00.'

8--21--68: The case was tried by Judge Dibrell, and at the conclusion of the trial, he announced: 'Gentlemen, . . . I am going to have to award judgment to the plaintiff in the amount of $4,354.98. . . . And since no attorneys fees were proved up, or no actual demand, I am not allowing any attorney's fees.' Thereupon, he made the following notation in the docket: '. . . Judgment announced in favor of plaintiff against defendant for amount of $4,354.98--Notice of appeal.'

8--23--68: Judge Dibrell signed a written draft of judgment, approved as to form and substance by the attorneys for both parties, awarding a recovery of $4,354.98, and continuing, '. . . with interest thereon at the rate of six percent (6%) per annum from September 12, 1964; and for all costs in this behalf expended, for all of which let execution issue. All recovery not specifically awarded herein is expressly denied. . . .' Above the signature of the judge was this legend: 'RENDERED, SIGNED and ENTERED this the 23 day of August, 1968.' Notice of appeal by Levine was contained in the draft of judgment, but the appeal was not perfected.

12--5--68: Levine filed a 'Motion for Entry of Judgment Nunc Pro Tunc' by which he sought the entry of a judgment correcting the draft of judgment of 8--23--68 by eliminating therefrom the award of pre-judgment interest from September 12, 1964.

1--16--69: Judge Dibrell refused and denied the motion for judgment nunc pro tunc 'for want of merit,' and Levine gave notice of appeal.

3--3--69: Judge Dibrell, on his own motion, rendered and entered a nunc pro tunc judgment which, after reciting that judgment for pre-judgment interest had not been rendered on 8--21--68 and that inclusion of such interest in the 8--23--68 draft of judgment was, therefore, a clerical error, awarded Comet judgment for only the principal sum of $4,354.98. The judgment also contained a recitation that '(a)ll recovery not specifically awarded herein is expressly denied.' On some date not shown in the record, Comet filed a motion to set aside this judgment.

3--6--69: Levine filed a one-paragraph motion for new trial.

3--17--69: Hearing was had on Comet's motion to set aside the nunc pro tunc judgment of 3--3--69 and on Levine's motion...

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157 practice notes
  • S & A Restaurant Corp. v. Leal, No. 04-91-00551-CV
    • United States
    • Court of Appeals of Texas
    • March 14, 1994
    ...orally or by written memorandum--the sentence of the law pronounced by him in any cause." Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 In Escobar v. Escobar, after disapproving this appellate court substituting its judgment for that of the trial court, the Texas Supreme Court clearly......
  • Madeksho v. Abraham, Watkins, Nichols Etc., No. 14-01-00453-CV.
    • United States
    • Court of Appeals of Texas
    • July 10, 2003
    ...trial court had the authority to recalculate the prejudgment interest on the judgment. Id. at 894 (quoting Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1970) (orig.proceeding)). In other words, the trial court did nothing more than enforce the appellate Trial courts want of auth......
  • State v. Naylor (In re State), No. 11–0114
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...written memorandum filed with the clerk.”S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.1995) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970) ) (other citations omitted). A trial court renders judgment orally when it announces rendition as a present act and not as a......
  • Dikeman v. Snell, No. B--3362
    • United States
    • Supreme Court of Texas
    • January 24, 1973
    ...471 S.W.2d 28 (Tex.1971); Lone Star Cement Corporation v. Fair, 467 S.W.2d 402, 406 (Tex.1971); Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970); Finlay v. Jones, 435 S.W.2d 136 (Tex.1968), which used the term 'invalid' instead of 'void'; Buttery v. Betts, 422 S.W.2d 149 (Tex......
  • Request a trial to view additional results
157 cases
  • S & A Restaurant Corp. v. Leal, No. 04-91-00551-CV
    • United States
    • Court of Appeals of Texas
    • March 14, 1994
    ...orally or by written memorandum--the sentence of the law pronounced by him in any cause." Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 In Escobar v. Escobar, after disapproving this appellate court substituting its judgment for that of the trial court, the Texas Supreme Court clearly......
  • Madeksho v. Abraham, Watkins, Nichols Etc., No. 14-01-00453-CV.
    • United States
    • Court of Appeals of Texas
    • July 10, 2003
    ...trial court had the authority to recalculate the prejudgment interest on the judgment. Id. at 894 (quoting Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1970) (orig.proceeding)). In other words, the trial court did nothing more than enforce the appellate Trial courts want of auth......
  • State v. Naylor (In re State), No. 11–0114
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...written memorandum filed with the clerk.”S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.1995) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970) ) (other citations omitted). A trial court renders judgment orally when it announces rendition as a present act and not as a......
  • Dikeman v. Snell, No. B--3362
    • United States
    • Supreme Court of Texas
    • January 24, 1973
    ...471 S.W.2d 28 (Tex.1971); Lone Star Cement Corporation v. Fair, 467 S.W.2d 402, 406 (Tex.1971); Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970); Finlay v. Jones, 435 S.W.2d 136 (Tex.1968), which used the term 'invalid' instead of 'void'; Buttery v. Betts, 422 S.W.2d 149 (Tex......
  • Request a trial to view additional results

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