Manley v. Razien

• Decision Date: 14 June 1943
• Docket Number: No. 5554.,5554.
• Citation: 172 S.W.2d 798
• Parties: MANLEY v. RAZIEN.
• Court: Texas Court of Appeals

172 S.W.2d 798

MANLEY v. RAZIEN.

No. 5554.

Court of Civil Appeals of Texas. Amarillo.

June 14, 1943.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Suit by T. K. Manley against John Razien and others for an injunction and damages for alleged destruction of certain property, wherein defendants filed cross-actions. Judgment for defendant Razien, and plaintiff appeals.

Affirmed.

Ennis Favors, of Pampa, for appellant.

Walter Rogers, of Pampa, for appellee.

PITTS, Chief Justice.

This suit was filed by the appellant, T. K. Manley, against John Razien, Carl Critz, Earl Hessman and Don Blake for injunction and damages in connection with the sale by Manley to Razien of certain scrap iron and other metals situated in appellant's junk yards in Gray County.

The same case was before this court previously when the appeal was dismissed, as reported in 160 S.W.2d 995, because the judgment of the trial court on that appeal was not final but only interlocutory and for a full statement of the original case, we refer to the statement made on that appeal.

It appears from the record before us now that following the dismissal of the former appeal on March 30, 1942, the clerk of this court issued a mandate on September 21, 1942, to the clerk of the District Court of Gray County in said cause and that on October 15, 1942, at the next succeeding term of district court appellee, John Razien, filed with the clerk of said court his motion praying for final judgment disposing of all parties and the subject matter in keeping with the findings of the trial court as reflected by the interlocutory judgment previously entered by the trial court and attached a copy of said interlocutory judgment to his said motion and made it a part of the motion. In his said motion appellee set out the proceedings had in the original case, including the trial, the findings of the trial court that appellant was indebted to appellee in the sum of $2,000 and appellee was indebted to appellant in the sum of $1,000, for which he rendered judgment accordingly without a proper offset being made, the prosecution of the appeal by all parties and the result of the appeal, after which he prayed for final judgment as stated above.

On October 24, 1942, appellant filed an answer to appellee's motion alleging that the original judgment entered by the trial court was not a final judgment as such was so determined by this court and that the trial court had made a judicial error and was powerless to correct, reform or amend it at a subsequent term of said court; appellant further alleged that M. C. Overton, Jr., was a cross-defendant and that he was in the United States Navy actively engaged and his whereabouts were unknown and that, in any event, any action by the court should be abated as to him in accordance with the provisions of the Soldiers' & Sailors' Civil Relief Act, 50 U.S.C.A.Appendix § 501 et seq.

The record discloses that a hearing was had before the trial court on October 24, 1942, on said motion and answer with appellee appearing by his attorney and appellant appearing in person together with his attorney at which hearing the trial court rendered and entered a final judgment in keeping with his findings set out in the interlocutory judgment previously rendered dissolving the temporary injunction previously issued and denying a permanent injunction; that appellant take nothing against appellee; that defendants, Don Blake, Earl Hessman and Carl Critz, take nothing in their cross-action against appellant and that appellee have judgment for $1,000, jointly and severally, against appellant and his bondsmen, M. C. Overton, Jr., and I. L. Robinson, but that no execution should issue against the surety, M. C. Overton, Jr., on the bond during the military service of the said M. C. Overton, Jr., and for three months thereafter, from which judgment appellant gave notice of appeal and same was entered on November 3, 1942, and thereafter perfected.

We find from the record that the original hearing and the latter one were both heard before the court without the intervention of a jury and that on this appeal both appellant and appellee called the attention of this court to the transcript, statement of facts and briefs filed in this court in this case in the former appeal, along with the transcripts and briefs filed in this second hearing, and both parties have quoted at length from the original statement of facts.

Appellant complains in point one that the trial court committed a judicial error in his original judgment and was not authorized to correct it at a subsequent term of the court and he complains in point two that the trial court was not authorized in a subsequent term of court to amend his original judgment where no testimony was offered to show clerical error, both of which points will be considered together. Appell...