Leatherwood v. Holland

• Decision Date: 24 January 1964
• Docket Number: No. 16481,16481
• Citation: 375 S.W.2d 517
• Parties: R. L. LEATHERWOOD, Appellant, v. Maxine HOLLAND et vir, Appellee.
• Court: Texas Court of Appeals

Page 517

375 S.W.2d 517

R. L. LEATHERWOOD, Appellant, v. Maxine HOLLAND et vir, Appellee.

No. 16481.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 24, 1964.

Rehearing Denied Feb. 28, 1964.

Wade, Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellant.

Clyde & Hines and Al Clyde, Fort Worth, for appellee.

MASSEY, Chief Justice.

R. L. Leatherwood brought suit against Maxine Holland and her husband, alleging that from January 10, 1958, to April 16, 1960, Mrs. Holland was his employee and that she converted money belonging to him to the use and benefit of herself and her husband, all of which her husband knew or, in the exercise of ordinary care, should have known.

On the last day of September, 1960, a default judgment was rendered in behalf of the plaintiff and against the defendants. This judgment was set aside on motion for new trial.

In November, 1962, the cause came on for trial before a jury. After four or five days the case was submitted on special issues. In answer the jury found that Mrs. Holland had made false entries on the business records of plaintiff during the period of her employment, and that the plaintiff had instructed her to change the bank deposit records. The jury, by a 'no' answer to an issue, refused to find that Mrs. Holland wrongfully appropriated to her own use any of plaintiff's funds. Having so refused, the jury did not answer the issue inquiring as to the amount appropriated, if any.

A take nothing judgment was rendered. From this judgment, as against Mrs. Holland, plaintiff Leatherwood appealed.

Judgment affirmed.

By his first point the plaintiff complains because the trial court set aside the default judgment rendered on September 30, 1960. Premise of plaintiff's complaint is his contention that said judgment should have been treated as valid and persisting because, according to him, the court purportedly set the same aside at a time when it had lost jurisdiction and lacked authority so to do. We believe that the point is subject to construction as a contention that the trial court did not have jurisdiction.

When the defendants filed their motion for new trial and to set aside the default judgment of September 30, 1960, a hearing thereon was set for Monday, October 31, 1960. It is readily observed that this date would be that proper to be treated as the 30th day following entry of the judgment, and the last day on which the trial court had authority to grant a new trial on this character of motion. Texas Rule of Civil Procedure 4, 'Computation (time)'. The plaintiff did not cause a copy of the court's docket to be made a part of the record on appeal. Only the order granting the new trial appears in the transcript. It recites: 'On this 31st day of October, 1960 came on to be heard the motion of the defendants to set aside the default judgment * * *', etc., and concludes with decree that a new trial is granted. Thereafter, and immediately above the signature of the court, is recited: 'Signed this 14 day of November, 1960.'

Certainly the trial court did not have jurisdiction to set aside the prior default judgment, under authority of the motion for new trial, if it is a fact that the trial court did not vacate the default judgment until a date after October 31, 1960. But the matter of the time when the court acted is not established through the same means by which a litigant shows that a party attempting to perfect an appeal has lost his right to do so because some act made a prerequisite had not occurred in time. It is well known that the date of signature upon a judgment decree is to be treated as the date thereof for purposes of the 'time-table for appeal', under provisions of T.R.C.P. 306a, 'Date of Judgment, Etc.'. This rule is without application when no appeal is taken.

Disregarding Rule 306a, inapplicable herein, any order setting aside a judgment, which but for such order would have become final, would be subject to the same rules applicable to judgments. A judgment, on its rendition, even without any entry, is final, valid and enforceable between the parties. The oral official pronouncement by the court of its conclusions and decision upon the matter submitted to if for adjudication may be said to be the rendition of its judgment. The writing out of the judgment in the form of a judgment on file, to be recorded, is a matter of subsequent clerical action. See Texas State Board of Examiners in Optometry v. Lane, 1960 (Tex.Civ.App., Fort Worth), 337 S.W.2d 801, error refused. The same rules of law would have application to an order which purported to set aside a judgment.

The plaintiff has not shown that the default judgment of September 30, 1960, was not validly set aside. The fact that the order purporting to set it aside, after having been reduced to writing, was signed on a date after the expiration of 30 days following its entry does not show such fact. Therefore plaintiff's point of error is overruled.

During the course of the voir dire examination of the jury panel the attorney for the defendants made the statement that the evidence would show that no criminal case was pending against his clients. The attorney for the plaintiff decided to make a motion in limine before the first witness was called. He moved that the defendants, their counsel, and witnesses be instructed to refrain from offering any evidence or asking any questions intended to elicit evidence to show the pendency or non-pendency of any criminal proceedings against the defendants in connection with matters involved in the case, or to show the action or failure to act in respect thereto on the part of any law enforcement agency, prosecuting office, or other body.

The attorney for the defendants made strenuous objection to the motion for he had already informed the jury that the proof would show the fact. The court stated that he would sustain the motion.

The theory under which the plaintiff brought his suit was that Mrs. Holland had taken cash out of many of the deposit envelopes containing the profits received, had changed the bank deposit slips delivered to the bank, and had deposited therein only a part of the cash which should have been deposited. The theory under which the suit was defended admitted that the original deposit slips (prepared by the route men) had been changed by Mrs. Holland, with a reduced amount deposited, but that in each instance it had been plaintiff Leatherwood who had opened the deposit envelopes, removed the cash, and instructed Mrs. Holland to change the slips to show a reduced total for deposit. In other words the plaintiff was accusing Mrs. Holland of embezzlement, and she, in turn, was accusing the plaintiff of having taken cash in such manner as to show a reduced amount of income from his business in a manner, the purpose of which was not understood by her at the time, but ultimately believed to have been to fraudulently reduce the amount of plaintiff's income taxes.

During cross-examination counsel for the defendants elicited testimony from the plaintiff that he had given certain information concerning Mrs. Holland, reflecting unfavorably upon her employment record prior to the time she went to work for him, to the Internal Revenue Service. He was...