Dunn v. Dunn

Citation439 S.W.2d 830
Decision Date04 June 1969
Docket NumberNo. B--1102,B--1102
PartiesFoster C. DUNN, Deceased, Petitioner, v. Juanita DUNN, Respondent.
CourtSupreme Court of Texas

Brown & Gauss, Robert W. Gauss, Lubbock, for petitioner.

William H. Crenshaw, Jr., Lubbock, for respondent.

HAMILTON, Justice.

The respondent brought this suit in the trial court to secure a divorce and a division of property on January 19, 1967. The defendant, Foster C. Dunn, filed a cross-action also asking for a divorce. The trial court heard the case without a jury on May 24, 1967, and on that day made an oral pronouncement from the bench of its disposition of the cause.

On May 26, 1967, the defendant died. At issue in this Court are two questions: whether such a pronouncement was a valid judgment; and whether the trial court was required to grant the motion to dismiss this action because of the defendant's death.

The Court of Civil Appeals in this case has sustained the respondent's point of error contending that she was entitled to a motion to dismiss the cause because the defendant, Foster C. Dunn, died before the entry of a written judgment. 430 S.W.2d 27. The Court of Civil Appeals has also held that because the defendant's death occurred at a time when the trial court still had jurisdiction of the judgment, the trial court should have granted the respondent's motion to dismiss the action. This holding conflicts with a prior holding in Blain v. Broussard, 99 S.W.2d 993 (Tex.Civ.App.--Beaumont 1936, no writ). In that case the trial court had pronounced an oral judgment granting a divorce, but no written judgment had been entered when the defendant died. Upon the motion of the plaintiff, the trial court set aside the divorce decree and ordered the cause dismissed. Upon appeal, the Court of Civil Appeals ordered the trial court's judgment of divorce entered nunc pro tunc. The Court of Civil Appeals in that case based its result upon a determination that the trial court did not have power to disturb a rendered divorce judgment because of a party's subsequent death. Because of the conflict of this holding with the case at bar, jurisdiction arises in this Court by virtue of Article 1728, Sec. 2, Vernon's Ann.Tex.Stat. (1953).

At the hearing on May 24, 1967, in which the trial court heard testimony on behalf of both parties, the following pronouncement was made from the bench:

'May I say as a preliminary remark, and I am going to decide the case right now, not going to take it under advisement. * * *

'I am going to grant the divorce to Mrs. Dunn, * * *

'No. 1: Mrs. Dunn shall have a homestead right in the property for a period of time from now until not later than January 1st, 1968. If there has not been a voluntary, in other words, fee title to the property, in half and half in both of them, tenants in common, subject to her homestead right, including all the income off of it until January 1st, 1968 (Sic.). At any time in the interim the parties certainly can sell the property if they can work it out between themselves to sell it, and, of course, as to the proceeds from the real estate, which includes, I am including all of that block of real estate, will be divided equally, the proceeds, after expenses of sale. Going with that sale, if there be one, would be the furniture in the little house, that is part of the deal. In other words, I am giving her the furniture in the big house outright. If by January 1st, 1968, some disposition has not been made of it between the parties, I shall appoint a receiver to dispose of the property, that real estate, and after the expenses of receivership are over with, then we will divide the proceeds of that real estate fifty fifty.

'Each party will pay their own attorneys' fee. Costs will be borne by Mr. Dunn, costs of suit, not considering attorney's fees, costs of suit by Mr. Dunn.'

The trial court also provided in its directive for dividing the payment of taxes on the realty. After this announcement the respondent's attorney agreed to draw a written judgment for the court. The court itself entered no record of the above proclamation on its docket sheet.

When the defendant died on May 26, 1967, there had been no written entry of the oral pronouncement from the bench on May 24, 1967.

On June 20, 1967, the husband's death certificate was filed with the court. On June 21, 1967, the respondent filed a motion to dismiss the case because of the death of her husband, and on that day the court heard argument on behalf of both parties. On June 27, 1967, the court overruled the respondent's motion to dismiss and entered a judgment in accordance with the pronouncement announced from the bench on May 24, 1967.

The Court of Civil Appeals sustained the respondent's point of error that she was entitled to her motion to dismiss the cause because the defendant died before a written judgment was entered, and accordingly reversed and remanded the cause with instructions to the trial court to dismiss the case from its docket because the trial court had not lost jurisdiction of the judgment at the time of the defendant's death. 430 S.W.2d 27, 29.

The validity of respondent's point of error sustained below first turns upon a characterization of the May 24, 1967, oral announcement from the bench. If this pronouncement was a final 'decision' within the contemplation of Rule 164, Texas Rules of Civil Procedure, a party would not subsequently be entitled to a motion to dismiss or to take a nonsuit.

In Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953), this Court set forth the rule regarding oral rendition of judgments.

'In Freeman on Judgments, 5th Ed., Vol. 1, Sec. 48, pp. 80 and 81, it is said that 'the rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication' which 'may be oral as well as written,' and that a judgment is "rendered" when the decision is officially announced either orally in open court or by memorandum filed with the clerk.'

This rule giving validity to oral judgments from the bench is also recognized in Rule 306a, T.R.C.P., which provides in part that:

'Judges are directed to cause, and attorneys and clerks are directed to use their efforts to cause all judgments, decisions, and orders of any kind to be reduced to writing and signed by the trial judge and the date of signing stated therein; But absence of any such showing shall not invalidate any judgment or order.' 1 (Emphasis added.)

The principle that an oral judgment by the court is valid is predicated upon the supporting principle that the entry of a trial judgment is only a ministerial act. Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961 (1952); Bridgmen v. Moore, 143 Tex. 250, 183 S.W.2d 705 (1944); IV McDonald, Texas Civil Practice, § 17.05, p. 17 (1967 Supp.). Thus a written judgment signed by the trial judge is not a prerequisite to the finality of a judgment. Texas State Board of Examiners in Optometry v. Lane, 337 S.W.2d 801, 804 (Tex.Civ.App.--Ft. Worth 1960).

The respondent in this case also contends that the property rights of the parties were not fully determined in the May 24, 1967, announcement from the bench, and hence the court was only entering an interlocutory order. The validity of this contention depends upon an interpretation of the following portion of the court's pronouncement:

'If by January 1st, 1968, some disposition has not been made of it between the parties, I shall appoint a receiver to dispose of the property, that real estate, and after the expense of receivership are over with, then we will divide the proceeds of that real estate fifty fifty.'

It is this Court's opinion that this order was a final...

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121 cases
  • State v. Naylor (In re State)
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...its intent to render immediate judgment, the announcement served as a binding judgment effective as of that moment. See Dunn v. Dunn, 439 S.W.2d 830, 833 (Tex.1969) (explaining that final judgment is rendered when court orally announces its decision to grant divorce). The State's petition w......
  • Roberts v. Roberts
    • United States
    • Court of Appeals of Texas
    • June 30, 1999
    ...No. 08-97-00092-CV (Tex.App.--El Paso July 2, 1998, no pet.)(not designated for publication), citing TEX.R.APP.P. 7.1; Dunn v. Dunn, 439 S.W.2d 830, 833-34 (Tex. 1969); Palomino v. Palomino, 960 S.W.2d 899 (Tex.App.--El Paso 1997, writ denied), and Novotny v. Novotny, 665 S.W.2d 171, 173-74......
  • Garza v. Texas Alcoholic Beverage Com'n
    • United States
    • Supreme Court of Texas
    • July 3, 2002
    ...ministerial duty to sign a judgment affirming the administrative decision, which can then form the basis of an appeal. Cf. Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex.1969) (court has ministerial duty to sign judgment after oral rendition); TEX. R.APP. P. 26.1 (requiring a signed judgment before......
  • Keim v. Anderson
    • United States
    • Court of Appeals of Texas
    • April 3, 1997
    ...further, future action was necessary by the court, and therefore, judgment had not been rendered at the hearing). See also Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969)(oral judgment of divorce which determined that parties were each entitled to 50 percent interest in property and had provided fo......
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