Humphries v. Chandler, 8363

Decision Date24 January 1980
Docket NumberNo. 8363,8363
Citation597 S.W.2d 2
PartiesArvie Lee Mills HUMPHRIES, Appellant, v. Leo Z. CHANDLER et al., Appellees.
CourtTexas Court of Appeals

B. Regan McLemore, Longview, for appellant.

Terrell L. Pace, Livingston, for appellees.

DIES, Chief Justice.

In May of 1973, appellees, Leo Z. Chandler, Verdo R. Chandler, Donna Chandler Reynolds, Nellie Jo Holt, Barbara Ann Vallery, Steve W. Chandler, and Donis D. Chandler, Jr., filed a petition to declare heirship in the County Court of Polk County. Appellees were the children and grandchildren of Leola Chandler Mills, deceased. Appellees were the issue of Leola Chandler prior to her marriage to S. V. Mills, deceased. Appellant, Arvie Lee Mills Humphries, is a child of S. V. Mills, deceased, by a marriage prior to his marriage to Leola Chandler. Both Leola and S. V. Mills died intestate.

Appellant and appellees entered into an agreed order of determination of heirship on September 16, 1975, to the effect that appellees jointly received one-half of their mother's and grandmother's estate and that appellant received one-half of her stepmother's estate.

On April 23, 1979, after motion by appellees, the court entered a nunc pro tunc judgment which among other things provided: "Any mention of ARVIE LEE MILLS HUMPHRIES receiving any share or portion of the Estate of LEOLA CHANDLER MILLS, DECEASED, is Ordered stricken and deleted from the Order of Determination of Heirship." From this nunc pro tunc judgment, appellant has perfected this appeal.

Appellees argue that the 1975 judgment gave appellant a greater interest than was intended, and that the court has the power to correct this judgment to reflect what was actually intended.

In Perkins v. Dunlavy, 61 Tex. 241, 244 (1884), the Court said:

"The application for judgment nunc pro tunc was based upon the ground that the district judge erred in quashing the citation, and holding the defendant was not in court in such manner that a judgment by default could not be taken against him. Admitting for the purposes of this appeal that the judge did err in such ruling, it was an error or incorrect action in a matter of law which cannot be revised or reversed at a subsequent term upon a motion to enter a different judgment nunc pro tunc."

After a judgment has become final, clerical errors in the entry of the judgment rendered may be corrected by a nunc pro tunc judgment, but judicial errors in the rendition of the judgment may not be corrected. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970). This question (whether clerical or judicial) is a question of law, and the trial court's finding or conclusion is not binding on the appellate court. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968). The critical inquiry is not what judgment might or ought to have been originally rendered, but what judgment was rendered. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041 (1912). See the recent and scholarly decision in In Re Marriage of Dunn, 589 S.W.2d 166 (Tex.Civ.App. Amarillo 1979, no writ), where the trial court determined that its original judgment of divorce should be changed by adding an income tax provision. The Amarillo Court correctly held this to be improper as a judicial and not a clerical change.

In Fischer v. Huffman, 254 S.W.2d 878 ...

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5 cases
  • Escobar v. Escobar
    • United States
    • Texas Court of Appeals
    • September 25, 1985
    ...Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968); Williams v. Wyrick, 151 Tex. 40, 42-43, 245 S.W.2d 961, 962 (1952); Humphries v. Chandler, 597 S.W.2d 2, 3 (Tex.Civ.App.--Beaumont 1980, no writ); In the Matter of the Marriage of Dunn, 589 S.W.2d 166, 167 (Tex.Civ.App.--Amarillo 1979, no wri......
  • In re Catholic Diocese of El Paso (San Lorenzo Church)
    • United States
    • Texas Court of Appeals
    • June 18, 2015
    ...by trial courts to materially alter, by judgment nunc pro tunc, the terms of the original judgment rendered. See, e.g., Humphries v. Chandler, 597 S.W.2d 2, 3 (Tex.Civ.App.–Beaumont 1980, no writ) (concluding that deletion of a step-child from an order of determination of heirship in connec......
  • In re Heritage Operating, L.P.
    • United States
    • Texas Court of Appeals
    • June 18, 2015
    ...by trial courts to materially alter, by judgment nunc pro tunc, the terms of the original judgment rendered. See, e.g.,Humphries v. Chandler, 597 S.W.2d 2, 3 (Tex.Civ.App.—Beaumont 1980, no writ)(concluding that deletion of a step-child from an order of determination of heirship in connecti......
  • In re Heritage Operating, L.P.
    • United States
    • Texas Court of Appeals
    • June 18, 2015
    ...by trial courts to materially alter, by judgment nunc pro tunc, the terms of the original judgment rendered. See, e.g., Humphries v. Chandler, 597 S.W.2d 2, 3 (Tex.Civ.App.--Beaumont 1980, no writ)(concluding that deletion of a step-child from an order of determination of heirship in connec......
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