Nevitt v. Wilson

• Decision Date: 09 June 1926
• Docket Number: (Motion No. 6792.)
• Parties: NEVITT et ux. v. WILSON, Judge et al.
• Court: Texas Supreme Court

285 S.W. 1079

NEVITT et ux. v. WILSON, Judge et al.

(Motion No. 6792.)

Supreme Court of Texas.

June 9, 1926.

Original motion by Charles M. Nevitt and wife for leave to file petition for mandamus against Louis Wilson, Judge of the Forty-Fourth District Court of Dallas County, and another. Motion overruled.

Bird & Bird, of Dallas, for the Motion.

CURETON, C. J.

This case is before us on application for leave to file a petition for mandamus against Hon. Louis Wilson, Judge of the Forty-Fourth district court of Dallas county, and Hon. John H. Cullom, clerk of that court.

In a certain suit pending in Judge Wilson's court, No. 48316, Charles M. Nevitt and Wife v. John R. Whorton, a verdict of the jury was returned on May 3, 1924. When the verdict came in, Judge Wilson entered upon his docket the following notation: "Jury verdict on special issues for plaintiff."

On May 5, 1924, within two days after the rendition of this verdict, the defendant in that case, John R. Whorton, filed a motion to set aside the verdict and grant him a new trial. On May 6, 1924, the plaintiffs, Nevitt and wife, filed with the clerk of the court their motion for a judgment on the verdict, together with a form of decree which they desired entered. This form of judgment was entered on the minutes by the clerk on May 31, 1924. The minutes for the term were approved by Judge Wilson on that day, which was the closing day of the term.

On June 21, 1924, after the beginning of the succeeding term of court, and some 46 days after the original motion was filed, the defendant, Whorton, filed what he called a supplemental motion for new trial.

On July 5, 1924, 60 days after the original motion for a new trial was filed, the court heard the original and amended motions, set aside the verdict of the jury, and granted a new trial.

On August 7, 1924, the plaintiffs, Nevitt and wife, filed a motion to vacate the order of July 5th granting a new trial and to reconsider and sustain their previously filed motion for judgment, for the reason that 60 days had elapsed between the filing of the original motion for new trial and the hearing of the motion by that court, and that by operation of law the jurisdiction of the court to entertain the motion for a new trial had ended and the judgment had become final. This motion was heard on September 24, 1924, but no express order overruling it was entered. Upon that hearing, however, the defendant's attorneys called the court's attention to the fact that the judgment in the plaintiffs' favor entered on the minutes of the court had not been signed by the court, whereupon the court struck the judgment from the minutes, entering the following decree:

"On this the 24th day of September, A. D. 1924, it being made to appear to the court that on May 31st, 1924, what purports to be a judgment of this court was entered on the minutes bearing date May 31, 1924, and being recorded in Book 52, p. 185, of the minutes of this court, and it appearing to the court that on said date of May 31, 1924, there was pending before this court a motion by plaintiffs for judgment on the special findings of the jury and a motion by defendant to set aside the findings of the jury and grant a new trial, and that said judgment as entered was without the knowledge or approval of this court:

"It is ordered that said purported judgment and the record thereof be, and the same is, stricken out, set aside, and held for naught."

It is obvious from a reading of this decree that it was an adjudication that the court had never in fact pronounced any sentence, decree, or judgment on the verdict of the jury, and that the entry of such a decree by the clerk was an inadvertent irregularity. The effect of the order just quoted was also tantamount to a refusal, under the issues then before the court, to grant the plaintiffs' motion to set aside the order vacating the new trial and to overrule the plaintiffs' motion for judgment theretofore filed on May 6, 1924.

Subsequent to the above proceedings, the plaintiffs, Nevitt and wife, applied to the clerk, John H. Cullom, for an execution on the judgment involved, which he refused to issue. A motion was then made in the cause for the court to order the clerk to issue the execution, which was overruled.

The application before us is for the issuance of a mandamus to require John H. Cullom, the district clerk, to issue execution on the judgment involved, or in the alternative, that, if the judgment recorded on the minutes of the district court of the Forty-Fourth district is not found to be the judgment of that court, then that Judge Wilson be required to render a judgment nunc pro tunc in keeping with this verdict.

John H. Whorton, the defendant in the judgment, is not named as a party respondent in the petition for mandamus. Under the well-established practice of this court, he is a necessary party. Cleveland v. Ward, 285 S. W. 1063, this day decided, but not yet officially reported, and authorities there cited; Crumley v. McKinney (Tex. Sup.) 9 S. W. 157; Cullem v. Latimer, 4 Tex. 329; Chappel v. Rogan, 94 Tex. 492, 62 S. W. 539.

Since we could not hear and consider the petition and grant the relief asked for, it would be useless for us to permit the petition to be filed. Since, however, the question of practice involved is a matter of importance, we will pass upon the merits of the application as well.

The Forty-Fourth district court of Dallas county comes within the act of 1923 (Acts 1923, c. 105), applicable only to certain counties of the state. The act is now embraced in article 2092, Vernon's Ann. Civ. St. 1925. Only certain subdivisions are involved in the matter before us. These read as follows:

"28. Motion for New Trial. — A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court. No motion for new trial or other motion or plea shall be considered as waived or overruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court. All motions and amended motions for new trials shall be presented within thirty days after the original motion or amended motion is filed and shall be determined within not exceeding forty-five days after the original or amended motion is filed, unless by written agreement of the parties filed in the case, the decision of the motion is postponed to a later date.

"29. Time to File Motion for New Trial. — A motion for new trial where required shall be filed within ten days after the judgment is rendered or other order complained of is entered, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed.

"30. Judgment Final, When. — Judgments of such civil district courts shall become as final after the expiration of thirty days after the date of judgment or after a motion for a new trial is overruled as if the term of court had expired. After the expiration of thirty days from the date the judgment is rendered or motion for new trial is overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts."

The insistence is here made that, because the original motion for new trial was not presented within 30 days and acted upon within 45 days after the verdict of the jury was received, and because the supplemental motion for new trial was not filed until 46 days after the verdict, and the motion for new trial was not granted until 60 days thereafter, the order granting the new trial, as well as that vacating and striking from the minutes of the court the judgment, is void, for the reason that the court had lost jurisdiction and the judgment had become final.

We will first discuss the validity of the judge's act in striking from the minutes the judgment which had been entered thereon.

We quoted the decree, which shows that the original judgment struck from the minutes was entered in the cause without the knowledge or approval of the court; in other words, that it was entered without the court's authority and through inadvertence. It is clear then to our minds that the statutes quoted above have no application to the act of the court in striking the inadvertent decree from the minutes of the court. The power of a court to correct inadvertent judgment entries or irregularities which find place upon its minutes without authority or judicial action is one which does not rest upon legislative acts, and cannot be destroyed by legislative authority. That power of the court is derived from the Constitution, which creates it. The power of the court to make its minutes speak the truth as to what the court has actually done is beyond legislative limitation or control, unless, of course, under some principle of estoppel, rights of third parties may have intervened. In consequence of this doctrine, it is established law that statutes such as the one quoted above, limiting the power of courts within a certain period of time to control their judgments, have no application to the organic power of courts to correct nonjudicial mistakes in their proceedings, or to annul orders and judgments inadvertently or improperly entered of record. Freeman on Judgments (5th Ed.) vol. 1, §§ 216, 217, 218, 219, 220, 226; Coleman v. Zapp, 105 Tex. 491, 494, 151 S. W. 1040; Burnett v. State, 14 Tex. 456, 65 Am. Dec. 131; Whittaker v. Gee, 63 Tex. 435; Mouser v. First National Bank (Tex. Civ. App.) 197 S. W. 1000; Moore v. Toyah Valley Irr. Co. (Tex. Civ. App.) 179 S. W. 550; Gerlach Mercantile Co. v....