Knox v. Long

• Decision Date: 08 April 1953
• Docket Number: No. A-3871,A-3871
• Citation: 257 S.W.2d 289,152 Tex. 291
• Parties: KNOX et al. v. LONG et al.
• Court: Texas Supreme Court

Page 289

257 S.W.2d 289

152 Tex. 291

KNOX et al. v. LONG et al.

No. A-3871.

Supreme Court of Texas.

April 8, 1953.

Rehearing Denied May 6, 1953.

Dan Moody, Austin, Hurst & Burke, Longview, Fulton, Hancock & McClain, Edwin M. Fulton, Gilmer, for petitioners.

Wynne & Wynne, Dallas, Angus G. Wynne, Dallas, William A. McKenzie, Dallas, Harrington & Harrington, Longview, H. M. Harrington, Jr., Longview, Grimes & Grimes, Washington, N. C., for respondents.

GRIFFIN, Justice.

Respondent Betty Knox Long, the only child of W. C. Knox, deceased, joined by her husband, in her individual capacity, and as administratrix of the estate of W. C. Knox, deceased, recovered a judgment in the District Court of Gregg County, Texas, against Harryett H. Knox, the widow of W. C. Knox, and the other petitioners, who are the children of Harryett H. Knox by a former marriage. Generally, respondent alleged that all of the property owned by petitioner Harryett H. Knox was community property belonging to respondent's father and Harryett, but held in the name of Harryett, in trust for the community estate. She also sued for certain described properties, the legal title to which was in the children of Harryett, but which respondent alleged such children held in trust for the community estate of her father and Harryett. Further facts will be stated in disposing of the contentions of the various parties in this court. The trial court's judgment was affirmed by the Court of Civil Appeals, 251 S.W.2d 911, and we granted writ of error.

Petitioners' first point attacks the jurisdiction of the trial court to render the judgment herein because this case had been dismissed by the trial court at a term previous to the one at which this judgment was rendered. It is contended that the action of the trial court in reinstating this case upon the docket, and in setting aside the dismissal at a subsequent term without any bill of review having been filed, was null and void. Judge Earl Roberts, who was the judge during the early history of this litigation, resigned his office and Honorable Fred Erisman was appointed to succeed Judge Roberts about May 1, 1950. An order was drawn in the District Clerk's office upon the minutes of the court, and this order was signed by Judge Erisman under date of August 8, 1950. This order was a blanket order of 'dismissal for failure of the parties to prosecute' upon the court's own motion, and it listed 181 cases, giving numbers and styles of each case and the 146th case on the list was '20,688-B Betty Knox Long et al. v. Harryett H. Knox et al.' This order was signed at the end thereof by 'Fred H. Erisman, Judge', etc. and dated August 8, 1950. That term of court ended September 2, 1950. On September 15, 1950 the court's attention was called to the fact that this cause was included in the order of August 8, 1950 as one of the cases dismissed by such order. The judge immediately, upon his own motion, entered an order correcting the order of August 8, 1950, reciting that the inclusion of this cause in the blanket order of dismissal was done inadvertently and through mistake in the office of the District Clerk, without the knowledge or direction of the court, and was included in this list of causes dismissed although 'the court having specifically at that time directed the District Clerk to omit such case from the list of cases being dismissed, the inclusion of such case within such list was a mere clerical error and was not the judgment or order of the Court.' On September 29, 1950, after notice to all parties and a hearing had, the court entered another order reinstating this cause upon the docket of his court, and striking this cause from the list included in the order of August 8, 1950, and reciting mistake and facts as above. All parties are agreed that if the inclusion of this cause in the order of dismissal of August 8, 1950 was a clerical mistake, such mistake could be corrected as was done here, but that if its inclusion was a judicial mistake, the order could not be set aside as was done here, but a bill of review would have to be filed and acted on. We have no bill of review proceeding before us.

In the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041, the Supreme Court, speaking through Chief Justice Phillips, held that a court has the inherent power to correct a judgment by entry nunc pro tunc so as to properly recite the effect of the court's judgment, and said:

'The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is a ministerial act by which an enduring evidence of the judicial act is afforded.

'The failure of the minute entry to correctly or fully recite what the court judicially determines does not annual the act of the court, which remains the judgment of the court notwithstanding its imperfect record. * * * 'Hence it is that from the earliest times the power of correcting or amending their records, by nunc pro tunc entry, so as to faithfully recite their action, has been possessed and exercised by the courts as an inherent right, independent of any statute, and, in the absence of express provision, unaffected by limitation.'

See also Chambers v. Hodges, 3 Tex. 517, 529; Trammell v. Trammell, 25 Tex.Supp. 261; 25 Tex.Jur. 424, Judgments, Sec. 57; Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 48 A.L.R. 355; McDonald, Texas Civil Practice, Vol. 4, p. 1326, Sec. 17.08; Rules 316 and 317, Vernon's Texas Rules of Civil Procedure.

The record established that the stack of 182 docket sheets were left on the judge's desk. They had stamped on them by the clerk the entry 'Dismissed for want of prosecution'. That the judge signed all of the orders on the docket sheets without determining in advance that all such cases should and would be dismissed is made clear by his testimony as follows: 'At that time, without looking through the docket sheets, I started sitting there and thumbing them up until I had signed through a whole group of them. It took two or three days to sign them and they were just signed intermittently.' He testified further that he thereafter inquired of the clerk if any of the cases were active and should not be dismissed. At this point in the proceedings we think it may safely be said that no judgment of the court had yet been rendered in any of the 182 cases for it appears beyond dispute that although the docket entries had been signed the entries were provisional and the judge was still in control of all of them with no intention of permitting any of them to become judgments of the court until he first satisfied himself that none of the cases were active.

In response to the judge's inquiry the clerk looked through the files and called his attention to the fact that the Green case and this case were both active, whereupon 'those two cases were taken out of the stack and were laid aside not to be dismissed.' Thereafter all 182 docket sheets were delivered to the clerk's office. At this point in the proceedings we think these two things were established with certainty: (1) judgment had been rendered dismissing 180 cases; (2) judgment had not been rendered dismissing the Green case or this case. These conclusions find support both in the facts and in the law.

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.' One of the cases cited in support of the text is the case of Appeal of Bulkeley, 76 Conn. 454, 57 A. 112, 113, in which it is said: 'A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidance-whether orally or by written memorandum-the sentence of the law pronounced by him in any cause. This pronouncement of the court it is incumbent upon the clerk to forthwith enter. The writing out of the judgment in the form of a judgment file, to be recorded, is a matter of subsequent clerical action. * * * Here is recognized a clear distinction not only between the judgment and the writing which is required to be made to evidence it, but also between the rendition of the judgment and the preparation of this writing at some subsequent time.'

Thus it appears that when the judge satisfied himself that there was no further reason for withholding judgment in the 180 cases and delivered the signed written memoranda of dismissal in such cases to the clerk for such further clerical action as was necessary to the recordation thereof he had rendered judgment in such cases just as effectively as if he had made an oral pronouncement of dismissal in each case separately in open court. On the other hand, when the judge pulled the docket sheets of the Green case and this case out of the stack and laid them aside 'not to be dismissed' before the stack was delivered to the clerk, he terminated the possibility that the delivery of the sheets in those two cases would constitute the rendition of judgment therein just as effectively as if he had run a line through the entries on such sheets.

It is our opinion that the testimony and circumstances in evidence clearly support a conclusion that the signed instrument was never intended by the judge, or the clerk, or any one else, to be, and it was not in fact, a rendition of judgment as to this or any other case. On the contrary, such evidence clearly supports the conclusion that the instrument was intended to be and was but a formal draft of the judgment theretofore rendered, a memorial or record of what theretofore had been...