Cowan v. Ross

• Decision Date: 31 October 1866
• Citation: 28 Tex. 227
• Parties: WILLIAM R. COWAN, ADM'R v. ROBERT E. ROSS.
• Court: Texas Supreme Court

28 Tex. 227

WILLIAM R. COWAN, ADM'R

v.ROBERT E. ROSS.

Supreme Court of Texas.

October, 1866.

It is competent for the district court, on motion and after notice to the party concerned, to so amend the entry of its judgment rendered at a previous term, that the action of the court shall truly appear by the record; and if, at the time of the amendment, the cause be pending in the supreme court, and the error in the original judgment has been cured by the amendment, the supreme court, on the proper filing of a transcript of the amendatory proceedings of the court below, will affirm the judgment. See Pas. Dig. art. 49, note 241; 14 Tex. 456.

ERROR from Caldwell. The case was tried before Hon. A. W. TERRELL, one of the district judges.

The defendant in error, on the 21st of January, 1858, brought his suit against D. M. Porter, the intestate of the plaintiff in error, on a promissory note for $222. On the 29th of April, 1858, the defendant filed his answer of a general denial. At the fall term, 1858, judgment by default was entered against the defendant for $180, though no disposition of the defendant's answer appeared of record. On the 2d of February, 1859, the defendant filed his petition and bond for a writ of error, on which citation in error accordingly issued on the same day.

On the 20th of October, 1859, Ross, the plaintiff below, filed his motion in the district court to have the record of the judgment amended, nunc pro tunc, representing that when the cause was called for trial at the fall term, 1858, the defendant (Porter) withdrew his answer, and consented to a judgment for the sum as rendered; but that the clerk of the court, in making up the record, had omitted to make any entry of these facts. The motion further showed that Porter had died since the original judgment was rendered, and that W. R. Cowan had been appointed his administrator. [It may be doubted whether the amendment was necessary to prevent reversal. If the defendant really made no defense, it might have been regarded as a judgment nil dicit, after appearance.--REPORTER.]

Cowan, as administrator, accepted notice of the motion, and filed the following exceptions thereto: “1. Because there are no papers of said cause on file by which the same may be corrected. 2. Because said cause has been carried to the supreme court by the said D. M. Porter by writ of error, and said D. M. Porter procured two sureties to go upon his writ-of-error bond, to take the judgment as it now stands to the supreme court, and said cause is now pending in the supreme court. 3. Because said motion comes too late, the same not having been made at the next term of the court after the rendition of the judgment.”

The motion came on to be heard at the same term, when the court overruled the exceptions and made its order, reciting that it appeared by the...