Moore v. Toyah Valley Irr. Co.

• Decision Date: 14 October 1915
• Docket Number: (No. 492.)
• Citation: 179 S.W. 550
• Parties: MOORE et al. v. TOYAH VALLEY IRR. CO. et al.
• Court: Texas Court of Appeals

179 S.W. 550

MOORE et al. v. TOYAH VALLEY IRR. CO. et al.

(No. 492.)

Court of Civil Appeals of Texas. El Paso.

October 14, 1915.

Rehearing Denied November 4, 1915.

On Motion to Reinstate, November 4, 1915.

Appeal from District Court, Reeves County; S. J. Isaacks, Judge.

Action by Mrs. J. L. Moore against the Toyah Valley Irrigation Company and another in which J. T. Moore and others intervened as plaintiffs. Judgment for defendants, and plaintiffs appeal. Appeal dismissed.

Hefner & Cooke and J. W. Parker, all of Pecos, for appellants. Ross & Hubbard, W. A. Hudson, E. C. Canon, J. A. Buck, and J. E. Starley, all of Pecos, Capps, Cantey, Hanger & Short, of Ft. Worth, and J. A. Drane and Harry MacTier, both of Pecos, for appellees.

HARPER, J.

This suit for injunction was instituted by Mrs. J. L. Moore, originally, against the Toyah Valley Irrigation Company and A. J. Carpenter. Afterwards J. T., W. E., and E. A. Moore intervened in the case, in person or through Mrs. J. L. Moore, who is alleged to be their guardian (the petition does not exactly reveal which), setting up that they were jointly interested with plaintiff Moore in the lands and waters in controversy, and they filed pleadings and adopted those filed by Mrs. J. L. Moore.

The decree entered by the trial court after hearing is not such a final judgment as is required by law to confer jurisdiction upon this court, in that it does not dispose of the parties (intervener) nor the subject-matter sued for by such parties. The parties J. T., W. E., and E. A. Moore have not been disposed of by the decree, nor by any order of dismissal; nor has the subject-matter of their suit been disposed of as to them by the judgment.

Under the allegations in their petition in intervention, the said J. T., W. E., and E. A. Moore were proper parties to this action (Foster v. G., C. & S. F. Ry. Co., 91 Tex. 631, 45 S. W. 376), and, to make the decree final, there must be an order entered of record disposing of them as parties (Mendoza v. A., T. & S. F. Ry. Co., 62 S. W. 418¹), and likewise the decree of the court, in order to be such final judgment as will give this court jurisdiction to consider and determine the questions involved, must dispose of the pleas and issues of law and fact (Railway Co. v. Weld & Neville, 95 Tex. 278, 66 S. W. 1095).

It is therefore ordered that this cause be dismissed at the cost of appellants.

On Motion to Reinstate.

By motion appellants ask that their appeal, dismissed for want of a final judgment, be reinstated, for the reason that since the order of dismissal was entered a final judgment has been entered nunc pro tunc in the trial court, and further asks for a writ of certiorari to the clerk of the district court of Reeves county, Tex., to certify the record of the judgment as corrected.

The record filed in support of the motion shows that since the order of dismissal the appellants filed a motion in the district court containing the following:

"That * * * at the November term, 1914, * * * said cause was tried, and final judgment rendered, as appears from the docket entries and papers filed in said cause, disposing of the parties to said cause and the issues of law and fact raised by the parties thereto, that thereafter, and during the same term of said court, said judgment was duly recorded, but there was a clerical error in the record of said judgment, as so made, in this, that the said judgment does not dispose of the interveners, Mrs. J. L. Moore, as guardian, and the said J. T., W. E., and E. A. Moore, and does not dispose of the issues made by the pleading of said interveners, in that the record of said judgment omits the names of said interveners and omits reference to the issues made by their pleadings."

And by prayer they asked the court to amend or correct the judgment as indicated. Thereafter the judge in vacation, October 15, 1915, caused the judgment to be corrected as indicated.

It appears from the record that the judgment originally rendered actually disposed of the rights of the interveners, and as a matter of fact, a final judgment was rendered. But the judgment, as entered, does not correctly reflect and evidence the judgment actually rendered. The distinction between the rendition of a judgment, and the entry thereof is stated by Judge Phillips in Coleman v. Zapp, 105 Tex. 491, at page 494, 151 S. W. 1040, at page 1041, as follows:

"The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which the enduring evidence of the judicial act is afforded."

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