Comet Aluminum Company v. Dibrell

• Decision Date: 14 January 1970
• Docket Number: No. B--1729,B--1729
• Citation: 450 S.W.2d 56
• Parties: COMET ALUMINUM COMPANY, Inc., Relator, v. Honorable Joe B. DIBRELL et al., Respondents.
• Court: Texas Supreme Court

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 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 for new trial.

3--28--69: Judgment was rendered and entered refusing and denying Comet's motion to set aside the nunc pro tunc judgment, but such judgment was 'modified' to strike the recitation, '(a)ll recovery not specifically awarded herein is expressly denied.' A separate judgment was then rendered granting Levine's motion for new trial.

The position of Comet in this court is that the 3--3--69 nunc pro tunc judgment was void, and that the subsequent judgment setting aside that judgment and granting Levine a new trial is likewise void. Levine defends the validity of the 3--3--69 judgment on the ground that the court's 'pronouncement' on 8--21--68 of judgment for Comet for the sum of $4,354.98 constituted the 'rendition' of judgment in the case, and that any other adjudicative provisions in the 8--23--68 written draft of judgment were nothing more than clerical errors in the 'entry' of judgment which errors the trial judge was authorized to correct by a judgment nunc pro tunc. Having thus concluded that the 3--3--69 nunc pro tunc judgment was valid, Levine then turns to the provisions of Rule 306a, Texas Rules of Civil Procedure, as authority for the judgment granting his motion for a new trial. We will first examine the validity of the nunc pro tunc judgment; if it is void, the judgment granting a new trial falls automatically. Finlay v. Jones, 435 S.W.2d 136 (Tex.Sup.1968).

The law is now well settled in this state that clerical errors in the 'entry' of a judgment, previously rendered, may be corrected after the end of the court's term by a nunc pro tunc judgment, but that judicial errors in the 'rendition' of a judgment may not be so corrected. Finlay v. Jones, 435 S.W.2d 136 (Tex.Sup.1968); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Rule 316, Texas Rules of Civil Procedure. Judicial...