Corbett v. Rankin Independent School Dist.

Decision Date12 November 1936
Docket NumberNo. 3441.,3441.
Citation100 S.W.2d 113
PartiesCORBETT et al. v. RANKIN INDEPENDENT SCHOOL DIST.
CourtTexas Court of Appeals

J. S. Bracewell, of Houston, for plaintiffs in error.

Worth B. Durham, of San Angelo, and B. F. Howell, of Rankin (Kerr & Gayer, of San Angelo, on the brief), for defendant in error.

WALTHALL, Justice.

On the 5th day of January, 1932, Rankin Independent School District, as plaintiff, instituted this suit in the district court of Upton county against Ella M. Corbett and husband, W. C. Corbett, as defendants, to recover delinquent taxes on lands described in the petition and the schedule attached thereto, and alleged to be situated in Upton county and in said school district, and upon which taxes were alleged to be due and unpaid. On February 2, 1932, a judgment was rendered reciting that defendant, though duly served with process, failed to appear or answer, but made default, and judgment was entered of record in said cause in favor of plaintiff school district and against defendants in the sum of $625.24 for taxes, interest, and penalties and costs for the years 1928, 1929, and 1930, and a foreclosure of the tax lien on said lands.

On May 4, 1932, plaintiff school district filed in said cause "a motion to set aside judgment and bill of review," in which plaintiff repleads the cause of action substantially as in its original petition and further alleges that it was discovered after judgment was rendered and after the court had adjourned for the term, and before the said land was sold under execution in satisfaction of said judgment, that as to parts of the land delinquent for taxes, namely, surveys Nos. 3 and 19, and otherwise fully describing said two surveys foreclosed upon in said judgment, that by mistake, the judgment rendered in said cause sets out all of said sections 3 and 19 as being located in the territorial limits of plaintiff school district and within Upton county, when in fact only a part of said two surveys 3 and 19 are situated in said school district and in Upton county; plaintiffs pleading then sets out by metes and bounds the description of said two sections as should have been given in the petition and judgment.

Plaintiff, after fully repleading its cause of action as originally pleaded, alleges that if the judgment as rendered is allowed to stand and not reopened and the description of the land not corrected plaintiff would suffer irreparable loss in that by reason of the error in the description of the two surveys 3 and 19 would prevent plaintiff from collecting the taxes, penalties, and interest justly due on the other six sections involved in the suit as well as on surveys 3 and 19.

Plaintiff prays that the judgment as theretofore rendered be set aside, the cause of action be reopened, and the cause be tried upon its merits; that defendant be cited; and that plaintiff have judgment for the several sums of money as theretofore stated and the foreclosure of the tax liens.

Defendants Ella M. Corbett and husband, W. C. Corbett, answered this petition by general demurrer and general denial, and by special answer alleged that plaintiff school district for each of the years set forth in its original suit pursued an arbitrary, discriminatory, and illegal system and plan of taxation, stating the system to be a gross inequality in the assessment of taxes, and prayed that plaintiff take nothing by its suit, and that defendants have judgment removing cloud from their title.

The court heard and considered plaintiff's motion to correct the alleged error and mistake in the boundaries of the lands described in the former judgment as recorded in the minutes, and stated in the judgment, that the entry of the judgment did not speak the true judgment rendered by the court, and that upon plaintiff's motion and the motion of the court, and that all parties having in open court stated that the former judgment did not correctly describe the property, the court found that all the allegations in said motion as to clerical errors and mistake are true, and sustained said motion as to said errors and mistake in said entry; the court refused to reopen the case upon its merits, and entered a judgment as theretofore rendered, and said in the judgment rendered that same should be entered nunc pro tunc, and in the judgment then rendered on February 2, 1935, gave plaintiff school district judgment against defendants the sum of $625.24, for taxes, penalties, and costs, for taxes due for the years 1928, 1929, and 1930, and for the tax lien upon the lands described, as it existed on February 1, 1932, the judgment to bear interest from the 2d day of February, 1932; ordered a foreclosure of the tax lien and a deficiency judgment against defendants.

Defendants excepted and prosecute this appeal by writ of error.

Opinion.

Plaintiffs in error submit that the trial court was not authorized, under the pleadings of defendant in error, upon its own motion, or that of defendant in error, to grant a nunc pro tunc order correcting the clerical errors in the original or previous judgment or to grant any other relief not set forth and prayed for. Their contention is that defendant in error's cause of action is predicated upon an erroneous judgment and not a clerical error in the entry of the judgment rendered.

In its motion to set aside the former judgment ...

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5 cases
  • Dallas General Drivers, Warehousemen & Helpers Local Union No. 745 v. Vilbig Bros.
    • United States
    • Texas Court of Appeals
    • 2 Diciembre 1949
    ...Jones v. Bledsoe, Tex.Civ.App.1927, 293 S.W. 204; Lewis v. Davis, Tex.Civ.App.1921, 236 S.W. 105; see Corbett v. Rankin Independent School Dist., Tex.Civ.App.1936, 100 S.W.2d 113, 115, but that there must be a final judgment, Stafford v. Powell, Tex.Civ.App.1941, 148 S.W.2d 965; Jones v. Bl......
  • Worsham v. Fidelity Union Life Ins. Co.
    • United States
    • Texas Court of Appeals
    • 22 Junio 1972
    ...Amarillo, 1950, writ dis.); Universal Life Ins. Co. v. Cook, 188 S.W.2d 791 (Tex.Civ.App., Waco, 1945, n.w.h.); Corbett v. Rankin Independent School Dist., 100 S.W.2d 113 (Tex.Civ.App., El Paso, 1936, The Court said in Leatherwood v. Holland, 375 S.W.2d 517 (Tex.Civ.App., Fort Worth, 1964, ......
  • Coast v. Coast
    • United States
    • Texas Court of Appeals
    • 7 Diciembre 1939
    ...been, but only what judgment was rendered. Dunn v. Cravens, Dargin & Co., Tex.Civ.App., 97 S.W.2d 242; Corbett v. Rankin Independent School District, Tex.Civ.App., 100 S.W.2d 113. We do not mean to hold that it might not be shown in opposition to the entry of a judgment entered at a former ......
  • Fischer v. Huffman, 6245
    • United States
    • Texas Court of Appeals
    • 10 Noviembre 1952
    ...v. Henson, Tex.Civ.App., 7 S.W.2d 613, syl. 5-7; Bridgman v. Moore, Tex.Civ.App., 206 S.W.2d 871, syl. 7, 8; Corbett v. Rankin Independent School Dist., Tex.Civ.App., 100 S.W.2d 113, syl. The order of the trial court refusing to enter judgment nunc pro tunc also denies appellant's applicati......
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