Miller v. Trice

• Decision Date: 31 January 1920
• Docket Number: (No. 8309.)
• Citation: 219 S.W. 229
• Parties: MILLER v. TRICE.
• Court: Texas Court of Appeals

Page 229

219 S.W. 229

MILLER v. TRICE.

(No. 8309.)

Court of Civil Appeals of Texas. Dallas.

January 31, 1920.

Rehearing Denied March 6, 1920.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by J. A. Trice against W. F. Miller and another. Judgment for plaintiff by default against defendants, and defendant Miller appeals. Affirmed.

Marcus M. Parks and W. H. Hall, both of Dallas, for appellant.

Carothers & Brown and L. C. Kemp, all of Houston, for appellee.

RAINEY, C. J.

This suit was instituted by appellee in the Fourteenth judicial district court of Dallas county, Tex., on January 15, 1915, against M. W. Howard, a nonresident, and W. F. Miller, upon two promissory notes, one for $6,000, and the other for $4,000, both drawing interest and executed by the defendants on the 28th day of February, 1914, and attachment was caused to be issued by plaintiff and levied on the property of M. W. Howard. Citation was duly issued to Howard and to Miller, and both were duly served, and on the 2d day of November, 1915, final judgment by default in said cause rendered, as shown by the record:

"On the 2d day of November, 1915, after due service on all parties in said cause, final judgment was rendered by the court in said cause as follows: `November 2, 1915. Judgment final by default for plaintiff against the defendant Miller for the amount of the notes sued on, interest and attorney's fees, less credits appearing on said notes. Judgment final by default against defendant Howard foreclosing attachment lien as prayed.'"

No appearance by either defendant or answer was filed, in which condition said case remained until March 6, 1919. Plaintiff filed in said court a motion to enter judgment nunc pro tunc, and it was set down for hearing on March 29, 1919, and the defendant duly notified to appear and show cause why said motion should not be granted on said date. Said Miller appeared and answered said motion. Said motion was heard on March 29, 1919, and judgment was rendered entering said judgment as of November 2, 1915, and Miller appeals.

In Miller's answers to said motion a great many reasons were urged why said judgment originally should not have been rendered, but did not urge or offer any proof that the judgment that was really entered upon the minutes was not in fact the judgment which was actually rendered and ordered entered on the minutes on November 2, 1915.

Appellee filed no demurrer or exception to defendant's answer, but defendant's bill of exceptions shows that the court refused to permit the defendant Miller to make any kind or character of proof in support of any of the facts set up and alleged by the defendant in his answer.

The first assignment of error is that the court erred in overruling defendant's general demurrer contained in his answer to plaintiff's motion for judgment nunc pro tunc, as...