Mobley v. Rheem Manufacturing Company, 14914
| Decision Date | 22 December 1966 |
| Docket Number | No. 14914,14914 |
| Parties | Eunice Schmidt MOBLEY, a Widow et al., Appellants, v. The RHEEM MANUFACTURING COMPANY et al., Appellees. . Houston |
| Court | Texas Court of Appeals |
Fred Parks, Charles F. Oakley, Houston, for appellants.
Vinson, Elkins, Weems & Searls, Tom Weatherly, James Greenwood, III, Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Baker, Botts, Shepherd & Coates, John F. Heard, Houston, for appellees.
This is an appeal from an order denying a 'Motion to Correct the Record.' It is appellants' position that this cause was included in a judgment dismissing a number of cases by reason of clerical error. Appellees contend that if the cause was included in the judgment in error, it was a judicial error and was subject to correction only by bill of review.
This case, along with a large number of other cases pending on the docket of the 127th District Court, was set for trial on a specified date. The lawyers in all the cases were notified that on the date specified the cases would be dismissed for want of prosecution unless there was an announcement of ready for trial.
At the proper time the attorney for appellant was present for the call of the docket prepared to announce ready for trial. The judge of the 127th District Court then announced to the lawyers assembled that if any of them wished a case retained on the docket, the clerk was authorized to strike it from the dismissal docket on request. The attorney testified that he requested of the clerk that this case and one other be removed from the dismissal docket. The testimony shows that cases were removed from the docket by drawing a line through the style of the case on the docket and that this was done by the clerk at the time the request was made.
The attorney testified that he thought he saw the clerk strike both of his cases from the docket. This case appeared on the nonjury dismissal docket and was struck from that docket. It was also written in on the jury docket and was not struck from it. The clerk testified that a jury fee was paid in the case after the dismissal dockets were prepared and that he struck the case from the non-jury docket and entered it on the jury docket soon after the jury fee was paid, which was several weeks prior to the date set for announcements.
Whether by reason of mistake of the clerk in failing to strike this case from the list to be dismissed, or by reason of mistake on part of the attorney in failing to request its removal, the case remained on the dismissal docket. The clerk prepared a judgment dismissing all cases remaining on the dockets and presented the judgment to the judge, who signed it, and had the judgment entered in the minutes. None of the lawyers appearing in this case knew that it had been dismissed until some months after the judgment became final.
The trial judge made the following statement for the record:
Whether or not the clerk made a mistake in failing to strike this case from the dismissal docket, it was dismissed by the judgment rendered by the court. While it appears that the trial court would not have dismissed the case had he known that its removal from the dismissal docket had been requested, he did not know this. The judgment entered in the minutes of the court was the judgment rendered. While one might consider that the judgment of dismissal as to this cause was rendered by mistake, it cannot be said that the dismissal of this cause was a clerical error. A judgment rendered by reason of fraud, accident, or mistake can be corrected...
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Wood v. Paulus, 878
...judgment orally from the bench and what the terms of the pronouncement were are questions of fact. Mobley v. Rheem Manufacturing Company, 410 S.W.2d 320 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.); Dillon v. Nall, 99 S.W.2d 349 (Tex.Civ.App.--San Antonio 1936, writ dism'd); Reavley, Tri......
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Wittau v. Storie
...error was made. See, e.g., Davis v. Davis, 647 S.W.2d 781, 783 (Tex.App.-Austin 1983, no writ); Mobley v. Rheem Mfg. Co., 410 S.W.2d 320, 322 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.); Stauss v. Stauss, 244 S.W.2d 518, 519 (Tex.Civ.App.-San Antonio 1951, no writ). Based on these cases,......
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Abu-Ahmad v. Shadowbrook Apartments, ABU-AHMAD and A
...v. City of Houston, 419 S.W.2d 702 (Tex.Civ.App.--Houston [14th Dist.] 1967, writ ref'd n.r.e.); Mobley v. Rheem Mfg. Co., 410 S.W.2d 320 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.); Scott v. Scott, 408 S.W.2d 135 (Tex.Civ.App.--Fort Worth 1966, writ dism'd). We find that orders of dism......
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Kostura v. Kostura
...The existence of a clerical mistake is a question of fact to be determined by the trial court. Mobley v. Rheem Manufacturing Co., 410 S.W.2d 320 (Tex.Civ.App., Houston 1967, writ ref'd n.r.e.). In determining this question, the judge must start with the general presumption in favor of judgm......