Lone Star Cement Corp. v. Fair, B--2433

• Court: Supreme Court of Texas
• Writing for the Court: DENTON; In this direct proceeding in this Court relator seeks a writ of mandamus against Honorable J. Roll Fair; Blankenship; CALVERT; WALKER
• Citation: 467 S.W.2d 402
• Parties: LONE STAR CEMENT CORPORATION, Relator, v. J. Roll FAIR, District Judge et al., Respondents.
• Docket Number: No. B--2433,B--2433
• Decision Date: 05 May 1971

Page 402

467 S.W.2d 402 LONE STAR CEMENT CORPORATION, Relator,
v.
J. Roll FAIR, District Judge et al., Respondents. No. B--2433. Supreme Court of Texas. May 5, 1971.
Rehearing Denied June 2, 1971.

Hartnett, Curry & Davidson, Neil Davidson, Irving, for relator.

Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Harrison, Curtis & Cooper, Dallas, Garner & Walters, Lubbock, for respondents.

ORIGINAL PETITION FOR WRIT OF MANDAMUS

DENTON, Justice.

In this direct proceeding in this Court relator seeks a writ of mandamus against Honorable J. Roll Fair, Judge of the 101st Judicial District Court of Dallas County and alternatively, against Honorable Dallas A. Blankenship, Presiding Judge of the 1st Administrative Judicial District. B. W. Rush is also made a respondent. The writ is sought to set aside a nunc pro tunc judgment rendered by Judge Blankenship while serving as judge of the 101st District Court.

On April 20, 1966, relator, or plaintiff, filed suit in the 101st District Court on a sworn account naming as defendant Lonnie R. Chant and B. W. Rush, individually, and d/b/a Rush-Chant, Inc. On May 14, 1966, Chant filed a plea of privilege and plaintiff presented the trial court with a motion for non-suit which was thereafter granted on May 16, 1966.

At 9:30 A.M. on May 24, 1966, which was Tuesday following the expiration of twenty days after service of citation, plaintiff presented the trial court with a motion for a default judgment; however, it was not acted on at that time. At 2:30 P.M. the same day Rush filed his answer in the cause. On June 1, 1966, plaintiff filed a 'Motion to Set Aside Answer' and on June 10, 1966, Judge Blankenship rendered a default judgment against B. W. Rush, d/b/a Rush-Chant, Inc.

On July 12, 1966, thirty-two days after the rendition of the judgment, Rush filed a motion for new trial. Eight days later plaintiff filed a motion to strike defendant's motion for new trial. The record discloses no action taken by the court on these motions.

On July 16, 1969, four days more than three years after his last attempt to defeat relator's claim, Rush filed a motion for entry of a judgment nunc pro tunc. The motion requested that Judge Blankenship change the recitation in the default judgment to reflect that a written answer had been filed by Rush and ordered stricken as untimely filed prior to the entry of the default judgment. Relator replied and Judge Blankenship held a hearing on the motion. On October 23, 1969, the motion was granted.

Judge Blankenship signed the amended judgment which omitted the following words which appeared in the judgment of June 10, 1966:

'Defendant though duly and legally cited and service being in all things complete, failed to appear and answer herein, * * *.'

Page 404

Substituted for the above were the following:

'Defendant having been duly and legally served and having filed a Written Answer herein on May 24, 1966, but said Answer having been set aside by the Court on motion of the Plaintiff because said Answer was not timely filed and the Defendant being in default, * * *.'

On November 13, 1969, Rush filed an 'Amended Motion for New Trial on Order granting Defendant's Motion for Entry of Judgment Nunc Pro Tunc.' Four days later Judge Blankenship granted the motion for new trial.

Relator's appeal to the Dallas Court of Civil Appeals was dismissed. That court was of the opinion the granting of the motion for non-suit was a dismissal of the entire cause of action and consequently all subsequent proceedings were void. Lone Star Cement Corp. v. Rush, Tex.Civ.App., 456 S.W.2d 547. On application to the Court, we refused to grant a writ of error with the notation 'no reversible error.'

Pending relator's motion for rehearing we granted leave to file this petition for a writ of mandamus on the question of the nunc pro tunc judgment.

The Dismissal Order

It is our view the order of non-suit did not dismiss the entire cause. Subsequent to Lonnie R. Chant's filing a plea of privilege, relator presented the trial court with the following order:

No. 66--3482--E

LONE STAR CEMENT CORPORATION

vs.

LONNY R. CHANT (only)

IN THE 101st JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS

On this _5r_ day of _ _, 1966, the plaintiff acting by and through his attorney, in open court requested leave to take a non-suit, and it appearing to the Court that such request is well taken and that such leave should be granted.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this cause be, and the same is hereby dismissed without prejudice to the right of plaintiff to refile same; and the costs thereof are hereby taxed against plaintiff, for which execution may issue.

_ _FOR

JUDGE

Judge Blankenship dated and signed the order on May 16, 1966. The Docket Sheet entry reads: '5/16/66 Plf. takes non suit vs Lonnie R. Chant.' Beneath Chant's name in apparently different handwriting is the word 'only.'

When considered alone, the caption supports the contention that only one party was being dismissed. The body of the order purports to dismiss an entire cause, however. This is an ambiguous order. Generally, an ambiguous order may be construed in light of the motion upon which it was granted but this record contains no written motion to dismiss any party or cause. We must, therefore, follow other rules of construction. The same rules of interpretation apply in construing the meaning of a court order of judgment

Page 405

as in ascertaining the meaning of other written instruments. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564 (1937).

The entire contents of the instrument and record should be considered. The judgment is to be read as a whole. McCoy v. Texas Power & Light Co., 239 S.W. 1105 (Tex.Com.App.1922, jdgmt adopted); State v. Starley, 413 S.W.2d 451 (Tex.Civ.App.--Corpus Christi 1967, no writ); Moore v. Horn, 359 S.W.2d 947 (Tex.Civ.App.--Beaumont 1962, writ ref'd n.r.e.). The body of this order has no reference to the party or parties affected by the non-suit. Its effect should be interpreted with reference to the entire order, and the caption may be looked to in order to ascertain the parties for and against whom the judgment was rendered. Smith v. Chenault, 48 Tex. 455 (1878); Hodges v. Robbins, 23 Tex.Civ.App. 57, 56 S.W. 565 (Houston 1900, writ ref'd). Although the record contains no motion to dismiss preceding the order, it does reflect that Lonnie R. Chant alone filed a plea of privilege. The next action taken was the entry of the dismissal order, presumably in response to Chant's plea of privilege.

The style in the caption of the default judgment, as well as the plaintiff's application therefor, read as follows:

LONE STAR CEMENT CORPORATION

vs.

B. W. RUSH INDIVIDUALLY, and d/b/a RUSH-CHANT, INC.

All instruments thereafter filed were captioned with the identical style. A rule of construction applicable to contracts and other like instruments directs that courts follow a reasonable construction placed on the instrument by...