Love v. State Bank & Trust Co. of San Antonio, 1927-6500.

• Decision Date: 19 February 1936
• Docket Number: No. 1927-6500.,1927-6500.
• Citation: 90 S.W.2d 819
• Parties: LOVE v. STATE BANK & TRUST CO. OF SAN ANTONIO.
• Court: Texas Supreme Court

90 S.W.2d 819

LOVE v. STATE BANK & TRUST CO. OF SAN ANTONIO.

No. 1927-6500.

Commission of Appeals of Texas, Section A.

February 19, 1936.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by R. A. Love against the State Bank & Trust Company of San Antonio. To review a judgment of the Court of Civil Appeals [57 S.W.(2d) 924] reversing a judgment for the plaintiff, the plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Marcus W. Davis and P. E. Johnson, both of San Antonio, for plaintiff in error.

C. S. Slatton, W. J. Rogers, R. F. Spencer, and A. J. Lewis, all of San Antonio, for defendant in error.

GERMAN, Commissioner.

This suit was filed June 8, 1918. The second amended original petition was filed November 5, 1919. The original answer was filed October 4, 1918, and first amended original answer was filed April 21, 1927. On March 27, 1928, the following order was entered:

"R. A. Love, vs. State Bank & Trust Co.

B—17982

"In the District Court, 57th Judicial District, Bexar County, Texas.

"On this the 27th day of March A. D. 1928, the above numbered and styled cause having been regularly called for trial, no announcements being made by either party, the Court is of the opinion that this cause should be dismissed for want of prosecution.

"It is therefore ordered, adjudged and decreed by the Court that this cause be dismissed and that plaintiff pay all cost in this behalf expended or incurred, for which let execution issue.

                                    "R. B. Minor
                "Judge of the 57th District Court, Bexar
                             County, Texas."
                

On June 19, 1928, which was after the adjournment of the term of court at which the above-mentioned order was entered, the plaintiff filed a motion praying that the order of March 27, 1928, be set aside and that the cause be reinstated upon the docket of the court. On the same day the court entered an order attempting to set aside the order of March 27, 1928, and restoring the cause to the docket of the court for trial. As disclosed by the motion and the recitals in the order of June 19, 1928, it appears that this cause was, by mistake, placed upon a list of cases to be dismissed for want of prosecution, at a time when the court had under consideration certain demurrers and exceptions. There is nothing to show, however, when such demurrers and exceptions were submitted. Presumably, they were submitted about the time the second amended original answer was filed on April 21, 1927. The fact that they were under consideration by the court did not destroy the power to dismiss for want of prosecution. The special exceptions could have influenced the decision to dismiss for want of prosecution, especially in light of the fact that the case had been pending, untried, for nearly ten years; and in that event no one could doubt the power of the court to enter the order of dismissal.

In July, 1931, the defendant in the trial court filed a motion to set aside the order of June 19, 1928, alleging that it was void, because entered at a subsequent term of the court and without notice to it. This motion was overruled and the case went to trial, resulting in a judgment in favor of the plaintiff in some $20,000.

On appeal the Court of Civil Appeals held that the order of March 27, 1928, was a final judgment, and that the court was without power to set it aside on mere motion after the adjournment of the term of court at which it was entered. The judgment of the trial court was remanded, with instructions to strike the cause from the docket. 57 S.W.(2d) 924. The only question for decision by this court is whether or not the Court of Civil Appeals was correct in its ruling.

The principles announced by this court in the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1042, are directly in point and decisive of this case. In that case it was said:

"It should also be noted that this proceeding did not have for its purpose the correction or amendment of the judgment rendered by the court as distinguished from the entry of the judgment upon the minutes. It sought only to amend the entry, nunc pro tunc, so as to include that which was omitted and thereby afford a faithful record of the whole judgment. In other words, it did not seek the amendment or...