Finlay v. Jones

• Decision Date: 04 December 1968
• Docket Number: No. B--1007,B--1007
• Citation: 435 S.W.2d 136
• Parties: Beulah J. FINLAY, Relator, v. Honorable Herman JONES, Judge of the 53rd Judicial District Court of Travis County, Texas, and John L. Moulden, Respondents.
• Court: Texas Supreme Court

Page 136

435 S.W.2d 136

Beulah J. FINLAY, Relator, v. Honorable Herman JONES, Judge of the 53rd Judicial District Court of Travis County, Texas, and John L Moulden, Respondents.

No. B--1007.

Supreme Court of Texas.

Dec. 4, 1968.

Rehearing Denied Jan. 15, 1969.

Byrd, Davis, Eisenberg & Clark, Dick Allison, Austin, for relator.

Small, Herring, Craig, Werkenthin & Shannon, Bob Shannon, of counsel, for respondent in mandamus and nunc pro tunc proceedings only.

Jones, Blakeslee, Minton, Burton & Fitzgerald, Austin, for respondents.

CALVERT, Chief Justice.

By an original proceeding in this court, relator seeks issuance of a writ of mandamus to compel Judge Herman Jones to set aside an order, entered by him on May 17, 1968, granting a motion for new trial in Cause No. 144,607 on the docket of the 167th District Court of Travis County, or, alternatively, to set aside a nunc pro tunc judgment entered by him in the same cause on May 1, 1968. She is entitled to have the writ issue.

On August 31, 1967, Judge Jones rendered and entered a default judgment in favor of relator as plaintiff in Cause No. 144,607. By the terms of the judgment relator-plaintiff was awarded a recovery from John L. Moulden, defendant, of $35,000 as damages for personal injuries.

Notice of entry of the judgment was given to Moulden's attorney who promptly filed a motion for new trial. The motion was not called to the attention of the trial judge and, under the provisions of Rule 329b, Texas Rules of Civil Procedure, was overruled by operation of law on October 23, 1967.

On February 26, 1968, Moulden filed a bill of review, separately numbered on the trial court's docket, by which he seeks to set aside the default judgment. Relator has answered, and the bill of review suit is pending on the docket untried.

On April 9, 1968, Moulden filed under the cause number of the original suit an instrument entitled, 'Application for Entry of Judgment Nunc Pro tunc', in which he alleged that certain recitations in the original judgment were erroneous and by which he sought to have them corrected. Judge Jones, after a hearing on the application, made findings that certain recitations in the judgment were erroneous and proceeded on May 1, 1968, to render a judgment with corrected recitals, nunc pro tunc, as of the date of the original judgment. No change was made in the decretal part of the judgment which awarded relator a recovery of $35,000 and all court costs. So that the changes made in the original judgment may be more readily apparent, we quote below the recitations as they appeared in the original judgment of August 31, 1967 and as they appeared in the nunc pro tunc judgment of May 1, 1968.

JUDGMENT OF AUGUST 31, 1967

'Defendant though duly, legally and regularly cited according to law to answer herein, failed to appear and wholly made default. It further appearing that every process of law was duly and legally performed and every notice was duly given defendant as required by law but nevertheless he wholly made default.'

JUDGMENT OF MAY 1, 1968

'The defendant was not duly, legally and regularly cited according to law to answer herein, but was, rather, duly, legally and regularly cited according to law to answer in Cause No. 144,608, pending in the 167th District Court of Travis County, Texas, and the defendant John L. Moulden did not fail to appear and did not wholly make default, but, rather, an answer for defendant, John L. Moulden was filed on August 6, 1965, by his attorney, Roy Minton, and said answer was on file on August 31, 1967. It further appeared that no notice was given to defendant or his attorney as required by law and that he did not make default.'

The trial judge made a number of findings in support of his corrected judgment. Briefly summarized, they are to the effect that the recitations in the first judgment of due service of citation on the defendant and of his failure to appear and his default were erroneous, and that their inclusion in the judgment was due to clerical and not judicial errors; that the defendant was served with citation under a different cause number, but, nevertheless, in due time filed in Cause No. 144,607 a written answer which was on file at the time the default judgment was rendered, but that it was unfound and un-noticed because someone in the clerk's office had inadvertenly placed it with the papers in another case.

On May 2, Moulden filed a motion for new trial which was granted by the trial court on May 17. Asserted authority for the trial court's order granting Moulden a new trial, entered in response to a motion filed some six months after the court's first judgment had apparently become final, is Rule 306b, Texas Rules of Civil Procedure.

As indicated at the beginning of this opinion, the order granting Moulden a new trial is the primary object of relator's attack in this proceeding. Relator contends that the order is not authorized by Rule 306b and that it is, therefore, invalid. We do not find it necessary to decide that question because we are convinced that the nunc pro tunc judgment is invalid and must fall; and when the nunc pro tunc judgment falls, all subsequent proceedings predicated upon it, including the order granting Moulden a new trial, fall automatically.

It seems quite clear to us that the errors found by the trial court to exist in the original judgment were judicial and not clerical errors. As such, they could not be corrected after the end of the term at which the judgment became final, that is, after the expiration of thirty days from the date on which the original motion for new trial was overruled by operation of law. Rule 329b, Texas Rules of Civil Procedure; Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031 (1934). Such has been the consistent holding of this court through a long series of cases. See Perkins v. Dunlavy, 61 Tex. 241 (1884); Missouri Pac. Ry. Co. v. Haynes, 82 Tex. 448, 18 S.W. 605 (1891); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Arrington v. McDaniel, 119 Tex. 148, 25 S.W.2d 295 (1930); Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936); Tunnell v. Otis Elevator Co., 404 S.W.2d 307 (Tex.Sup.1966). Respondents do not contend that judicial errors are subject to correction after expiration of the term at which they are entered. They contend, rather, that the errors in the original judgment were clerical errors, as found by the trial court, which the trial court had inherent power as well as express authority conferred by Rules 316 and 317, Texas Rules of Civil Procedure, to correct at any time. Respondents cite a number of cases from other jurisdictions which they say support their claim that the errors were clerical rather than judicial. We are more concerned with the state of our own decisions.

Whether the errors in the original judgment are judicial or clerical is obviously a question of law, and the trial court's finding or conclusion as to the nature of the errors is not binding on this court. When respondents' argument on this phase of the case is carefully analyzed, its emphasis seems to be that because the inadvertent clerical errors--wrongly numbering the cause and the citation and erroneously filing Moulden's answer with the papers in another case--were responsible for the erroneous recitations in the court's judgment, the latter errors were ipso facto clerical. But, errors in rendered and entered judgments are not clerical merely because they are based upon or grow out of clerical errors. See Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819 (1936), in which an unintended judgment of dismissal was held to be judicial error in spite of the fact that the case was inadvertently and through mistake placed upon a list of cases to be dismissed for want of prosecution.

Briefly stated, the two erroneous recitations made by the trial court in the judgment rendered on August 31, 1967, were that (1...