Ft. Worth & D. C. Ry. Co. v. Roberts

• Decision Date: 30 May 1904
• Citation: 81 S.W. 25
• Parties: FT. WORTH & D. C. RY. CO. v. ROBERTS.
• Court: Texas Supreme Court

81 S.W. 25

FT. WORTH & D. C. RY. CO. v. ROBERTS.

Supreme Court of Texas.

May 30, 1904.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by P. S. Roberts against the Ft. Worth & Denver City Railway Company. Judgment in favor of plaintiff affirmed in part by the Court of Civil Appeals (78 S. W. 1000), and defendant brings error. Reversed.

Stanley, Spoonts & Thompson, for plaintiff in error. E. E. Diggs, for defendant in error.

GAINES, C. J.

In this case the Court of Civil Appeals sustained a motion to strike out the statement of facts, and, declining to consider most of the assignments of error for the reason that they could not be passed upon without a statement of the evidence, they affirmed the judgment in part and reversed and rendered it in part. The statement of facts was filed after the adjournment of the court for the term, but within 10 days from such adjournment. The transcript as originally made up contained no order allowing the document to be filed after the adjournment of the court, and it was upon this ground that the motion to strike out was based. After the transcript had been filed in the Court of Civil Appeals, and at a term of the district court subsequent to that at which the case had been tried, the appellant in the Court of Civil Appeals filed a motion alleging that the order allowing the 10 days had in fact been made by the court, and that the clerk had failed to enter it upon the minutes, and praying that the order be entered nunc pro tunc. The court, having heard the motion and the evidence in its support, granted it, and the order was accordingly so entered. The evidence upon the trial of that issue showed that no written motion for the allowance of the 10 days had been filed, and that there was no memorandum on the judge's docket, or other written evidence, that the order for additional time had been made. But the evidence was sufficient to show that an oral request had been made by counsel for the appellant, and that it had been granted by the court. The judge who heard the motion to enter the order nunc pro tunc had also presided upon the trial of the case, and his recollection was distinct to the effect that he had granted the request for the allowance of the 10 days. The Court of Civil Appeals held that it was error for the court to have granted the motion for the entry nunc pro tunc of the order in the absence of some memorandum in writing found among the papers or on the docket, showing that the order had been actually made.

That a court has the continuing power after an adjournment for the term to correct its minutes and to make them speak the truth by the entry of an order that has in fact been made or a judgment that has actually been rendered, but which has been omitted from its minutes, the authorities all agree; but upon the question whether this can be done in the absence of written evidence the decisions are in hopeless conflict. In the case of Blum v. Neilson, 59 Tex. 378, the precise question was passed upon by this court, and it was there held that, although there was no entry upon the judge's docket, and no memorandum of such order had been preserved, the order was properly entered nunc pro tunc upon oral testimony and the recollection of the judge. In that case, however, after deciding the point, the court say in their opinion: "As this decision concerns a matter of practice upon which distinct rules should be laid down for the guidance of the profession, we will state that in the future, when it becomes necessary that a statement of facts should be made up, signed, and filed after the adjournment of court...