Missouri Pac. Ry. Co. v. Haynes

• Decision Date: 08 December 1891
• Citation: 18 S.W. 605
• Court: Texas Supreme Court
• Parties: MISSOURI PAC. RY. CO. v. HAYNES <I>et al.</I>

18 S.W. 605

MISSOURI PAC. RY. CO. v. HAYNES et al.

Supreme Court of Texas.

December 8, 1891.

Commissioners' decision. Section A. Appeal from district court, Hopkins county; HOWARD TEMPLETON, Judge.

Suit by the Missouri Pacific Railway Company against J. C. R. Haynes and others to enjoin the enforcement of a judgment. Decree for defendants. Plaintiff brings error. Reversed.

Todd & Hudgins, for plaintiff in error. Perkins, Gilbert & Perkins, for defendants in error.

COLLARD, J.

This is an injunction suit brought by plaintiff in error railway company against defendants in error to restrain the collection by execution of an amount added to an original judgment by amendment in the district court on motion after the term. The amount of the original judgment, with all costs, was paid by the company, and it is only the amount added to the same by the amended judgment that is sought to be restrained. The court below, trying the case without a jury, adjudged the judgment as reformed to be valid, and refused to enjoin its collection on final hearing, holding that there was a clerical error in the original judgment, which was amendable at a subsequent term of the court. The railway company has brought the case to the supreme court by writ of error.

Haynes, Birge & Levy sued the railway company for the value of 87 bales of cotton, weighing 43,064 pounds, destroyed by fire negligently caused by the company while in its possession, for which they held the company's bills of lading, — one for 51 bales, weighing 25,564 pounds; one for 30 bales, weighing 14,489 pounds; and the third for 6 bales, weighing 3,011 pounds. These bills of lading were all attached to the petition in the original suit as exhibits. The company answered non-liability, on the ground that they had delivered the cotton before it was burned. There was no controversy over the number of bales or their weight, and the railway company on the trial did not deny but that 87 bales were burned, which weighed — aggregating 43,464 pounds — really only 43,064 pounds. The case was tried by the court the 30th day of April, 1888, and he rendered his decision for the plaintiff for the 87 bales of cotton burned, valuing it at 9½ cents per pound, with interest at 8 per cent. per annum from the date of the fire. The court filed his findings of fact that the railway company had negligently burned 87 bales of cotton belonging to the plaintiffs, which cotton was worth 9½ cents per pound, and allowed the interest before stated from the time of the fire. In estimating the weight of the cotton the court only took the weights of the 51 bales and the 30 bales as shown by the bills of lading, and in computing the gross weight omitted to include the bill of lading for the 6 bales, weighing 3,011 pounds; thus estimating the weight of only 81 bales at 9½ cents per pound. His findings (in writing) do not show how the error occurred, but, as shown on the trial of the case before us, he explains that the mistake occurred as follows: He intended to add up the weight of the 87 bales, and asked some one to call out the weights from the three bills of lading, and the person only called out the weight from two of them, omitting by oversight to include the sixbale lot. The judge thought he had included the weights of all the cotton, and testified that he found for plaintiff the weight of the entire 87 bales, and intended to give judgment for that amount, and thought he had done so, until the motion to correct the judgment was filed. The defendants in the suit appealed the case to the supreme court, and, after the appeal was perfected, the transcript, with assignment of errors, was filed in the supreme court. The plaintiffs, on the 18th of October, 1888, at the next term of the district court, as soon as they learned of the error in the judgment as originally rendered, filed a motion in the district court to correct the judgment because of the foregoing facts; and on the 22d of October, 1888, the railway company being duly served in regular session, the court, upon hearing the evidence, granted the motion, the railway company declining to appeal. The supreme court was then in session, and on the next day after the assignment to which the appeal belonged, to-wit, on the Tuesday after the Monday on which the assignment was set, the plaintiffs filed a motion in the supreme court, a certified copy of the judgment as amended attached, asking the court to consider the amended judgment as a part of the record in the court, which motion was overruled, and the original judgment was affirmed. 10 S. W. Rep. 398. The mandate issued. The grounds upon which the motion was overruled by the supreme court do not appear. Subsequently the execution sought to be enjoined was issued after payment of the original judgment as affirmed, with costs.

The first error assigned by the company for our consideration was that the court below erred in its first conclusion of law in finding that the mistake by the district court in not including the six bales of cotton was a clerical mistake that could be corrected on motion at the succeeding term, because the facts show that the same was not a clerical error, but was, if an error at all, an omission of the consideration of evidence in the case, and plaintiffs' remedy, if any, was by motion for a new trial during the term. We believe that this assignment of error is well taken. The oversight of the court was not of that character that could be corrected after the term by motion under the statute. It was a judicial mistake, and could be corrected only by motion for a new trial or appeal. There was nothing in the record showing how the omission of the weight of the six bales occurred. Had the findings of the court or his docket entries given the data by which the judgment could be amended, the principle would be different. Without knowing what was in the breast of the court, the manner of committing the error could not be ascertained. It would appear from the evidence that the weight of 3,011 pounds of the cotton at 9½ cents had been omitted. What the trial judge remembered as explanatory of the error could not be made available in a motion to amend. The record proper would not show that there was any mistake, — that is, such part of the record as could be resorted to for the purpose. The court had the evidence before him, and in estimating the amount due acted in the capacity of a jury, and neglected, or by oversight, it is assumed, failed, to render judgment for the full amount due; in other words, failed to do justice between the parties. Suppose the case had been tried by a jury, and they had returned a verdict similar to the findings of the court, the record could not correct the mistake, or show that there was a mistake. Such a correction would be making a new verdict by the court. The court's findings ascertain that there were 87 bales of cotton of the value of 9½ cents per pound, but they do not ascertain how many pounds there were, or that any of the cotton was not included. In order to know the weight of the cotton, and how much was omitted, we are compelled to refer to the evidence. A verdict received and recorded for a sum certain, as "principal and interest" due on a note sued on, was held to be conclusive. Messner v. Hutchins, 17 Tex. 603. In the case cited the court say that, "if the verdict had contained the basis of the calculation made by the jury, or had afforded data by which their intention could be certainly ascertained, the mistake in their calculation might have been corrected, and the amendment would have been proper. But, having returned a verdict for the plaintiff for a sum certain, after it had been received and recorded, the court had no power over it to change it. If the finding was erroneous, and contrary to the evidence, the only way to correct it was by venire de novo, or a new trial." The motion in the case to amend was made on the day the verdict was rendered, on the ground that the jury had miscalculated the interest due on the note, as appeared therefrom. During the same term, in open court, the motion was granted, and the judgment was amended so as to conform to the note. The supreme court rested their conclusions upon the construction of the act of 1846, (Hart. Dig. art. 786; Pasch. Dig. art. 51,) which, like our present statute, (Rev. St. art. 1355,) provides for correction of a judgment in vacation in case "there shall be among the records of the proceedings in the suit in which such judgment or decree shall be rendered any verdict or instrument in writing whereby such judgment or decree may be safely amended." We do not see that this statute was applicable to the case then before the court, as the motion and the order were both made while the court was in session, the order being made in open court during the term when the judgment was rendered. There was another statute in force applicable to the case, enacted in 1846: "That when in the record of any judgment or decree of any court [district court act] there shall be any mistake, the judge of said court may in open court amend such judgment or decree according to the truth and justice of the case; but in all cases the opposite party shall have notice of the application for such amendment." Hart. Dig. art. 652; Pasch. Dig. art. 51. The same statute is substantially re-enacted in the Acts of 1879, or rather continued in force. Rev. St. art. 1354.

In the case of Ramsey v. McCauley, 9 Tex. 106, an amendment was made in the district court, at a regular term, of a clerical error, made by mistake of the clerk "in stating the title of the case in the margin before entering the verdict," writing "J. H. McCauley v. John Ramsey," instead of "George J. McCauley vs. John Ramsey," the verdict failing to give the name of plaintiff, which was followed by the judgment, referring merely to the parties as plaintiff and defendant. The supreme court affirmed the judgment, amending as to the name...