Dillon v. Nall

• Decision Date: 04 November 1936
• Docket Number: No. 9838.,9838.
• Citation: 99 S.W.2d 349
• Parties: DILLON v. NALL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

99 S.W.2d 349

DILLON v. NALL.^*

No. 9838.

Court of Civil Appeals of Texas. San Antonio.

November 4, 1936.

Rehearing Denied December 9, 1936.

Appeal from District Court, Bexar County; Marion McClanahan, Judge.

Suit by Vincent Nall against Tom Dillon. From a judgment for plaintiff, defendant appeals.

Affirmed.

Lewis E. Bartlett, of San Antonio, for appellant.

Moursund, Moursund & Bergstrom, William E. Remy, and W. W. Palmer, all of San Antonio, for appellee.

BOBBITT, Justice.

Appellee alleged in this case that appellant slandered him by falsely accusing him of "stealing appellant's cow" and wrongfully causing his arrest and imprisonment in Bexar county, and asked damages against appellant therefor in the Fifty-Seventh district court of Bexar county. Upon a trial of the issues before a jury—as demanded by appellant—and upon a verdict of such jury, appellee was awarded judgment against appellant in the sum of $1,000 for such alleged wrongful and malicious conduct.

In his motion for a new trial, appellant assigned no errors pertaining to the trial of the cause on the merits. Furthermore, in his brief on this appeal, appellant does not assign any errors or present any propositions of law asserting that there were any errors committed in the trial of the case on the merits. Appellant does raise various questions of procedure, including a plea of former judgment, and which he asserts show conclusively that the case had, before the trial, been dismissed from the docket of the trial court for want of prosecution, never lawfully reinstated or restored to the docket, and that the trial court was, therefore, without authority to proceed with the trial, and that the judgment rendered against him is in effect a nullity.

If the cause was in fact actually and lawfully dismissed from the docket and never properly reinstated thereto, then it was not properly tried on the merits and the judgment is without effect. If, on the other hand, the cause was not in fact so dismissed, but remained on or was lawfully restored to the docket, then, under the record here presented and in view of the position of the appellant before this court, the case should be in all things affirmed.

When all the issues in this appeal are boiled down to reality there is one, and only one, question involved, and the proper answer to that question will dispose of the appeal. That controlling question is: Did the trial judge, Hon. R. B. Minor, on the date, and under all the disputed facts and conflicting circumstances, in fact, dismiss this cause from the docket of his court?

Under the record here presented this is, of course, a question of fact, to be determined as any other question of fact, by the trial court hearing the issues on proper motion calling such question before the court, or by a jury, if in the discretion of the court he wishes to have such fact decided by a jury. This fact issue was properly raised in this case through the motion of appellant to have the court enter the alleged order of dismissal by Judge Minor entered nunc pro tunc. In this hearing on such motion Special District Judge Marion McClanahan, of the Fifty-Seventh district court, sitting in the absence of, and in place of, Judge Minor, did not call upon a jury to decide the facts, but proceeded to hear all the testimony of the various witnesses and to consider all the evidence submitted, and decided that issue himself. Tex.Jur. vol. 25, pp. 440, 441 and cases there cited; Johnson v. Haight (Tex.Civ.App.) 33 S.W. (2d) 510, 511; Smith v. Moore (Tex.Civ. App.) 212 S.W. 988; Lummus v. Alma State Bank (Tex.Civ.App.) 4 S.W.(2d) 195; Parnell v. Barron (Tex.Civ.App.) 261 S.W. 529.

After a lengthy hearing on the fact question of dismissal, raised as above stated, whereat much testimony was offered, pro and con, the trial judge concluded and found, as a fact, that Judge Minor "did not dismiss plaintiff's (appellee's) cause herein, on March 18, 1935," and thereon concluded, as a matter of law, that "defendant (appellant) is not entitled to and should not have judgment entering judgment of dismissal nunc pro tunc."

At the conclusion of the testimony, the appellant requested the trial court to file his findings and conclusions, with the result as just above stated, following the hearing on his motion. Such motion of appellant for entry of judgment nunc pro tunc, and which was based, necessarily, on the question as to whether the case had in fact been dismissed, was submitted to the trial court as the trier of the facts. The judgment of the trial court finding that the case had not been dismissed is binding on this court, if there is any substantial evidence to support it. Furthermore, in a proceeding of this nature wherein the substantial and fundamental rights of litigants are involved and where such are sought to be taken away from them through the application of rules of procedure—technical or otherwise—the trial court is vested with and should exercise some fair judgment and discretion, in addition to his ordinary duties as a trier of the facts, in order that injustice may not result from their application, in view of the facts and circumstances of the particular case. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Peckham v. Clark (Tex.Civ.App.) 294 S.W. 278.

In the case at bar, we must presume that the trial court acted in good faith, gave due consideration to all the evidence, heard and observed all the witnesses as they appeared, and was, of course, in a much better position to arrive at a correct conclusion as to the true facts, than this or any other appellate court. It is for these, as well as other, good reasons that all appellate courts should be slow to set aside or render ineffectual the findings of a trial court. There are many facts and circumstances set forth in the record before us which show that Judge Minor did not intend, and did not in fact dismiss appellee's suit. In any event, and for the reasons stated, this court should not substitute its judgment on the facts for that of the trial court; if such judgment has support in the evidence. Wooton v. Manning, 11 Tex. 327; William Finck & Co. v. Nacogdoches Mercantile Co. (Tex. Civ.App.) 163 S.W. 590; Moore v. Chapman et al. (Tex.Civ.App.) 168 S.W. 6; Johnson v. Haight (Tex.Civ.App.) 33 S.W. (2d) 510.

It appears that appellant does not attack the fact finding of the trial court that the case was not dismissed on the stated date. The transcript contains no bill of exceptions to this action of the trial court. The hearing and ruling on appellant's motion to enter judgment nunc pro tunc is a matter foreign to the issues and the trial of this case on the merits. Such finding of fact by the trial court, not being challenged by appellant by assignments of error, bills of exceptions, or propositions of law, is presumed by this court to be correct. The rule is well established that, where a motion or a case is tried before a court, his findings of fact are presumed to be correct in the absence of any attack by proper assignments of error. It seems, therefore, that appellant should not be further heard to complain that this motion was not properly determined by the trial court. Selkirk v. Selkirk (Tex.Civ.App.) 297 S.W. 578; Harvey Co. v. Braden (Tex.Civ.App.) 260 S.W. 655.

On the question of appellee having filed a motion to reinstate the cause, on the day of the alleged dismissal, and his having filed an alternative plea in this suit to the effect that if the case had, in fact been dismissed, it had also been reinstated, it appears that such action in both instances was, under the peculiar circumstances of the case, proper and in no way prejudicial to the rights of appellee, when fairly and practically considered along with all other proceedings in this case. Furthermore, such action in no way prejudices any right of appellant. He is in no way harmed if one of the attorneys for appellee became excited over a threatened action of the trial court and filed a motion which was, under the facts, wholly unnecessary in the first instance, and purely as an alternative plea in the present suit. At most, such action by counsel for appellee was in the first instance, in so far as this case is concerned, and can be considered only as a circumstance and as evidence as to what the trial judge actually did, as to the dismissal of the suit. This circumstance and all the other circumstances and evidence were considered by the trial court on the question of fact as to the dismissal of the suit, and were found against appellant. An alternative plea, such as appellee filed in this cause, does not affect or limit the integrity of the main plea or any other plea to which it may relate or refer. There was no error on the part of the trial court in overruling appellant's exceptions in this respect, and even if there was, such error becomes wholly immaterial and harmless, in view of the court's finding that the case was never, in fact, dismissed.

Passing now to the controlling question in this case, to wit: Whether or not there is evidence to support the finding and judgment of the trial court that Judge Minor did not in fact dismiss this cause of action on March 18, 1935, it appears that the record in this case fully sustains the action and judgment of the trial court.

In the first place, it affirmatively appears from the record that counsel for appellee were diligent in their efforts to bring this cause to trial, having had it set for trial on several occasions and having appeared in the trial court on the date of the alleged dismissal, just a few moments after the case had been called; his absence on this particular occasion being clearly and satisfactorily explained. In the second place, neither appellant nor any of his attorneys were in court on the date of the alleged dismissal, either for the purpose of having the cause dismissed or of participating in the trial. It is clear from all the facts and...