Lone Star Cement Corp. v. Rush
| Decision Date | 12 June 1970 |
| Docket Number | No. 17449,17449 |
| Parties | LONE STAR CEMENT CORPORATION, Appellant, v. B. W. RUSH, Appellee. |
| Court | Texas Court of Appeals |
Neil Davidson, Hartnett, Curry & Davidson, Irving, for appellant.
Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
The appellant Lone Star Cement Corporation brought this suit on what is termed a 'verified account' against B. W. Rush and Lonnie R. Chant, individually and d/b/a Rush-Chant, Inc. On June 10, 1966 the trial court rendered a judgment in which the defendant is recited as 'B. W. Rush, d/b/a Rush-Chant, Inc.,' reciting that said defendant was duly and legally cited but failed to appear and answer, and awarding appellant a default judgment for the amount of the account sued on, with interest, attorney's fees and costs. However, on May 24, 1966 the appellee B. W. Rush had filed an answer consisting of a general denial. On July 12, 1966 (32 days after the default judgment) he filed his motion for new trial complaining of the rendition of default judgment against him when he had an answer on file. On July 20, 1966 appellant filed a motion to strike said motion for new trial because it was not timely filed, but neither the motion for new trial nor the motion to strike the same was ever presented to the trial court, and no order was made concerning either of them.
Approximately three years later, on July 16, 1969, appellee filed a motion for entry of judgment Nunc pro tunc to correct the 'mistake, omission, and clerical error,' of the court in failing to recite, in the judgment of June 10, 1966, that a written answer had previously been filed on behalf of appellee and that the same had been stricken on motion as being untimely filed prior to the entry of the default judgment. The trial court granted the motion and rendered a nunc pro tunc judgment on October 23, 1969, in substantially the same phraseology as the former judgment, but omitting these 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,'
and substituting therefor 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,' etc .
Both parties timely filed written notices of appeal from that judgment, and on November 12, 1969 appellant filed its appeal bond, thus perfecting its appeal from the Nunc pro tunc judgment. Thereafter, on November 13, 1969, appellee filed an amended motion for new trial in which he moved that the Nunc pro tunc judgment 'and all other judgments heretofore entered and preceding the filing of this amended motion be set aside and held for naught,' and that he be granted a new trial. This amended motion for new trial was sustained by the trial court on November 17, 1969.
We are of the opinion that the appeal must be dismissed because the entire cause was dismissed by the trial court prior to the rendition of the June 10, 1966 judgment. On May 16, 1966, according to the transcript filed herein by appellant, the trial court entered the following order:
'On this 16th day of May, 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 hereof are hereby taxed against plaintiff, for which execution may issue.'
That order does not appear to have been modified or set aside and apparently no attempt was made to have it modified or set aside. It is our opinion that there was no suit pending between the parties when the court attempted to render the judgment of June 10, 1966, and if that be true it follows that no suit was pending when the Nunc pro tunc judgment was entered or when the amended motion for new trial was granted.
Appellant contends that the purpose and effect of the order last above quoted was to allow it to take a non-suit against the defendant Lonnie R. Chant only, leaving the case pending as against the other defendant, B. W. Rush, and calls our attention to the facts that the instrument was endorsed and that...
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State v. Buffalo, 8763
...is the highest and best evidence of its content. Young v. Foster, 148 Ga.App. 737, 252 S.E.2d 680 (1979); Lone Star Cement Corp. v. Rush, 456 S.W.2d 547 (Tex.Civ.App.1970). Consequently, the best evidence to prove a conviction is the judgment of conviction itself or a properly authenticated......
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Lone Star Cement Corp. v. Fair
...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 Pending relator's......
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Leonard v. Hearst Corporation, No. 01-04-01023-CV (TX 11/23/2005)
...signed by the trial court. Castle v. Castle, 734 S.W.2d 410, 413 (Tex. Civ. App.-Houston [1st Dist.] 1987, no writ); Lone Star Cement Corp. v. Rush, 456 S.W.2d 547, 549 (Tex. Civ. App.-Dallas 1970, writ ref'd n.r.e). Rather, the docket entry is "a memorandum made for the trial court and the......
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Abu-Ahmad v. Shadowbrook Apartments, ABU-AHMAD and A
...granting Rush a new trial. Id. at 404. Lone Star then appealed that case to the court of appeals. Lone Star Cement Corp. v. Rush, 456 S.W.2d 547 (Tex.Civ.App.--Dallas 1970, writ ref'd n.r.e.). It is not clear whether the effect of the dismissal order of May 16, 1966, was urged by Rush on th......