Jackson v. Gish

• Decision Date: 03 April 1969
• Docket Number: No. 4754,4754
• Citation: 440 S.W.2d 121
• Parties: M. K. JACKSON et al., Appellants, v. David H. GISH et al., Appellees. . Waco
• Court: Texas Court of Appeals

Page 121

440 S.W.2d 121

M. K. JACKSON et al., Appellants, v. David H. GISH et al., Appellees.

No. 4754.

Court of Civil Appeals of Texas Waco.

April 3, 1969.

Rehearing Denied April 24, 1969.

J. Alex Blakeley, Dallas, Don R. Stodghill, Rockwall, Harold F. Curtis, Jr., Greenville, for appellants.

John W. Price, J. C. Thomas, Dallas, for appellees.

OPINION

WILSON, Justice.

Two appeals are presented. Minority stockholders, appellees, brought this as a derivative action against the corporation and three of its directors who held a majority of its stock, alleging, among other acts, that the defendant directors had issued stock to themselves without consideration. The relief sought included an injunction, judgment for attorney's fees, for the value of corporate assets converted or diverted and for stock sold by defendants, and for cancellation of stock issued to defendant directors without consideration, with recovery of dividends paid. After a jury verdict, a lengthy judgment was rendered against the corporation and directors and a master was appointed.

Appellees move to dismiss the appeal for want of jurisdiction on the ground the motion for new trial and subsequent proceedings were not timely. This question turns on the date judgment was rendered. The judgment recites, 'On this the 13th day of March, 1968 came' the parties, followed by narration of empaneling of the jury, other recitals and the adjudicatory provisions. At the end of the judgment above the signature of the trial judge is written: 'Entered this 1st day of April, 1968'. The motion for new trial was filed April 9, 1968. If it was filed within ten days after judgment was rendered, the motion and other proceedings were filed in time. Rule 329b, Texas Rules of Civil Procedure. In our opinion the motion for new trial and subsequent proceedings were timely.

Rule 306a provides that 'the date of rendition of a judgment or order shall be the date upon which the written draft was signed by the trial judge as stated therein', and in event the date of signing is not so shown therein, 'then the date of rendition shall be otherwise shown of record'.

Appellee urges that the word 'entered' does not indicate signing or rendition, and that the date first mentioned in the judgment must be held to fix the time of signature. Rosenfield v. Hull, Tex.Civ.App., 304 S.W.2d 571, writ dism., is relied on. We are not in agreement with the holding in that plea of privilege case. In neither of the cases cited in that opinion as precedents was there a direct holding that the date recited to be that on which the judgment was 'entered' was not the date of rendition. In the first case cited the court implies it is proper to indulge a presumption that the trial court 'intended to use the word 'entered' as meaning 'signed". The mere fact that the two quoted terms are not synonymous, however does not require a holding that the use of 'entered' is fatal.

The 'term 'entry of judgment' is sometimes used in a general sense so as to include rendition of judgment'. 49 C.J.S. Judgments § 106, p. 229. Even the Supreme Court frequently uses the term 'entered' as meaning 'rendered' when the distinction is not significant. ¹ The use of the term 'entered' in this sense by the bench and bar of this state has become so prevalent that it is a matter of common knowledge of which we take judicial notice.

By supplemental transcript a nunc pro tunc judgment is presented in which the words 'Rendered, signed and entered' replace 'entered' on the original judgment. The error corrected is not judicial, but clerical, and it is the proper subject of judgment nunc pro tunc. Mahaley v. Jenkins, Tex.Civ.App., 369 S.W.2d 846; Brooks v. Hext, Tex.Civ.App., 392 S.W.2d 500, 503; Texas Employer's Insurance Ass'n v. Pillow, Tex.Civ.App., 268 S.W.2d 716, writ ref. n.r.e.; Alamo Casualty Co. v. Trafton, Tex.Civ.App., 228 S.W.2d 195. The judgment was properly rendered nunc pro tunc. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 291; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041; Panhandle Construction Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068. The motion to dismiss for want of jurisdiction is overruled. ²

We dispose next of the appeal of the corporation, Far-Pritt Associates, Inc., against which a default judgment was rendered, although its answer was on file, and notwithstanding it was dropped as a party defendant by amendment of pleadings. The default judgment against it is vacated. Since it was not a party defendant judgment is rendered that plaintiff take nothing against it. It is unnecessary to pass upon its complaints that the court erroneously disregarded a jury finding as to attorney's fees. The portion of the action against this corporation is severed.

The judgment against the directors must rest on the jury verdict. In our opinion the verdict will not support the judgment against them.

Plaintiffs' allegations are lengthy, but the posture of the case on appeal makes material those averments to the effect that stock issued to these defendants was without consideration; that they thereby misappropriated corporate assets; that stock was issued to them for service rendered without authority; and that they dealt in the stock of the corporation to their own interest and against the interests of the corporation by selling their own stock at a higher price when the corporation had its stock for sale at a lower price.

The material portion of the jury verdict is summarized as follows: (1) The three defendant directors ...