Knox v. Long

• Decision Date: 10 April 1952
• Docket Number: No. 6616,6616
• Citation: 251 S.W.2d 911
• Parties: KNOX et al. v. LONG et al.
• Court: Texas Court of Appeals

Page 911

251 S.W.2d 911

KNOX et al. v. LONG et al.

No. 6616.

Court of Civil Appeals of Texas, Texarkana.

April 10, 1952.

Rehearing Denied Sept. 25, 1952.

Further Motion for Rehearing Denied Oct. 23, 1952.

Hurst & Burke, L. F. Burke, Longview, Fulton & Hancock, Edwin M. Fulton, Gilmer, Dan Moody, Austin, for appellants.

Wynne & Wynne, William A. McKenzie, Dallas, Harrington & Harrington, Longview, Grimes & Grimes, Washington, N. C., for appellees.

WILLIAMS, Justice.

This action under plaintiffs' allegations is to enforce a parol trust. W. C. Knox and Harryett H. Knox who were married in 1928, located in Longview in the early days of the discovery of the East Texas oil field, and thence until his death on December 6, 1945, resided in and near Longview and Dallas, Texas. During the period the two actively engaged in the oil business, namely, the purchase and sale of minerals and mineral leasehold estates along with the development of leasehold estates into oil producing properties. At the time of his death the record title of various mineral and leasehold estates together with other realty acquired subsequent to 1930 stood in the name of Mrs. Knox, his surviving wife, or in the names of her children by her former marriage, namely, W. C. Holcomb, Joe B. Holcomb, Genia E. Williams or the latter's husband, J. H. Williams. No record title to any realty stood in the name of W. C. Knox or in the name of Betty Know Long, his daughter by a former marriage, his only child.

Dr. J. T. Hagan, as administrator, together with Betty Knox Long joined by her husband instituted this suit in the form of a statutory trespass to try title action on June 7, 1947. She later superseded Dr. Hagan as administrator, and in December, 1948, individually and as administratrix, joined by her husband filed an amended petition. In the amended petition, in which the same Mrs. Knox and above named children and son-in-law, and certain oil companies were named defendants, and in which the same properties were enumerated as before, the suit became one for the recovery of an undivided one-half interest in the various real and personal properties situated in Gregg, Upshur, Wood and Dallas counties, on the theory that said properties were acquired by the community efforts and funds of W. C. Knox and Mrs. Knox, and conveyed to the defendants for convenience, who were holding the same in trust for the community estate.

On March 28, 1951, a jury was impaneled and the cause proceeded to trial. In the course of the trial, plaintiffs on March 30 announced their nonsuit as against certain oil companies and defendants W. C. Holcomb, Joe B. Holcomb, G. W. Williams and J. H. Williams as to a seven-acre leasehold estate and lease house situated thereon; a 45-acre leasehold estate; a 40-acre leasehold estate; a 3-acre leasehold estate; and the one-fourth oil and gas royalty interest in Lot No. 9 of the Reese Addition to the town of Hawkins, Texas; all of which are fully described in the pleadings and the nonsuit decree.

At the close of all the evidence, the court pronounced judgment for plaintiffs against defendant Mrs. Knox for one-half interest in and to the 7/8 oil and gas leasehold estate and all personal property located upon lots 9 and 10 of the Reese Addition to the town of Hawkins, Texas; and an undivided one-fourth interest in the oil and gas royalty under Lot No. 10 of this addition. Plaintiffs were further awarded a recovery against the Humble Oil & Refining Company for approximately $49,000 on its answer, being the value of one-half interest in oil runs that had been impounded during the pendency of this suit. Upon its tender and payment into the court, the company was to be discharged from further liability. Above part of the judgment is grounded on the alleged failure and refusal of Mrs. Knox to produce exhibits and to submit to oral examination by counsel theretofore ordered by the court.

Pursuant to favorable jury findings for the plaintiffs as to the acquisition of the residence situated at 7038 Lakewood Boulevard, in Dallas, Texas, plaintiffs were further awarded a recovery against W. C. Holcomb and Mrs. Knox of an undivided one-half interest in and to the residence and lot together with the same interest in the household effects, equipment, pictures, rugs and other personal property therein situated. Mrs. Knox and her son W. C. Holcomb are appellants, and above-named plaintiffs are appellees.

On August 8, 1950, an order was entered in the civil minutes of the 124th District Court of Gregg County, which reads in part, 'Came on to be heard the above styled and numbered causes, and said causes were dismissed from the docket of said court for failure of the parties to prosecute same.' 'It is therefore ordered and decreed by the court that the * * * styled, and numbered causes be dismissed from the docket * * * on the court's own motion for reasons above stated.' This order listed 182 cases, giving number and style of each case, which included, 'No. 20,688-B, Betty Knox et al. v. Harryett Knox et al.', the case at bar. The term of court in which above dismissal judgment was rendered expired September 2, 1950. On September 15, 1950, after the expiration of above term, appellees filed their motion to reinstate this cause, alleging that the inclusion of this case among the list of above 182 cases was a mistake. The same day after an ex parte hearing without notice to appellants, the trial judge entered an order vacating above decree of dismissal and reinstated this cause on the docket. Thereafter, on September 20, 1950, a hearing was held on above motion to reinstate this cause, in which the respective litigants participated. This hearing resulted in another order vacating the dismissal order and reinstating the cause.

Appellants assert under their first two points that the trial court was without jurisdiction to reinstate the cause after the expiration of the former term of court except by bill of review and above-mentioned order reinstating the cause on the docket was a nullity.

Shortly after Hon. Fred Erisman had succeeded the Hon. Earl Roberts as judge of the court, in a move to clear from the docket dormant cases then pending the district clerk placed on the court's desk 182 docket sheets representing that number of cases that had been segregated for 'dismissal for want of prosecution.' Such dismissal order stamped on each sheet called for date and signature which the court signed. The court discovered with the assistance of Miss Stewart, the district clerk, on a re-check of the docket sheets and before their return to the clerk's office that the 'Green' case which was included in the list was then set for trial for September 11, 1950, and was also informed by the clerk that the present case was in the Court of Civil Appeals. 'Those two cases were taken out of the stack and were laid aside not to be dismissed.' 'Sometime thereafter, the whole group of sheets were taken into the Clerk's office and in Miss Stewart's absence and in my absence, they were entered by a new deputy.' The trial judge further testified, 'It was not my intention to dismiss the present case nor the Green case; both of which I had knowledge was actively pending on the docket.' 'I meant to leave them on the docket.' The order which reinstated the cause after a hearing recites 'That the inclusion of this suit in the blanket order of dismissal entered on August 8, 1950, was erroneously included * * * that the inclusion of such case by number and style was erroneous, a clerical mistake and misrecital within a decree or order of the court and was never intended to be dismissed, and should be now corrected.'

In support of their attack upon the validity of such order, appellants cite Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819; First National Bank v. Fox, 121 Tex. 7, 39 S.W.2d 1085; Eskridge & Williams v. Merchants State Bank & Trust Co., Tex.Civ.App., 173 S.W.2d 518; and Acosta v. Realty Trust Co., Tex.Civ.App., 111 S.W.2d 777. These decisions would control the disposition of above points as urged by appellants if a judicial mistake were involved. However, all the facts and circumstances above set out, being without dispute in the record, forces the inescapable conclusion that the entry of the dismissal order was the result of a clerical or manual mistake made in the clerk's office, contrary to the court's instruction and intention. Being a clerical error, the court was clothed with the legal authority after the hearing on the motion, to enter the reinstatement order of September 20, 1950. Applicable here, it is reannounced in Collins v. Davenport, Tex.Civ.App., 192 S.W.2d 291, 294, that 'It is the established law in this state that while the trial court may not, after the term of court at which a judgment was rendered, correct what is termed a judicial error, 'the power of a court to correct inadvertent judgment entries or irregularities * * * is derived from the Constitution which creates the court', and is not dependent upon legislative authority', citing Chambers v. Hodges, 3 Tex. 517; 25 Tex.Jur., p. 530, par. 135. See also the other authorities cited in the opinion, and rules 316 and 317, Texas Rules of Civil Procedure, applicable to this legal power. The attack upon this reinstatement order is overruled.

Appellants assert that the trial court 'acted in an arbitrary and capricious manner in depriving Mrs. Knox of the right to present her defenses and grounds for relief in this cause and in rendering judgment against her as a defaulting defendant' and 'in holding that she had not shown good cause for her failure to appear because the evidence conclusively established that she was unable to appear on account of her physical and mental illness.'

This extensive record deals in large part with the efforts to take the oral depositions of Mrs. Knox. As stated in appellants' brief, this record 'is cluttered with applications and notices of appelle...