Palmo v. S. W. Slayden & Co.

• Decision Date: 02 May 1906
• Parties: PALMO v. S. W. SLAYDEN & CO.
• Court: Texas Supreme Court

92 S.W. 796

PALMO v. S. W. SLAYDEN & CO.

Supreme Court of Texas.

May 2, 1906.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Mi Palmo against S. W. Slayden & Co. The Court of Civil Appeals (90 S. W. 908) reversed a judgment for plaintiff, and he brings error. Affirmed.

J. R. Downs and Richd. I. Munroe, for plaintiff in error. Clark & Bolinger and Eugene Williams, for defendants in error.

BROWN, J.

The following statement is sufficient for the solution of the questions presented upon this application: Mi Palmo sued Slayden & Co. upon a contract for the sale of certain lands, and, upon a trial before a jury, obtained a verdict for the sum of $9,508.35, and the judge of the trial court entered upon his docket the following: "11— 13—03. Verdict for plaintiff for $9,508.35." The judge did not make any memorandum, upon his docket or otherwise, of the judgment pronounced by him upon the verdict. The attorneys for the plaintiff in the case made a draft of a judgment and delivered it to the clerk of the court at the time that the verdict was delivered, or soon thereafter, which, however, was never entered upon the minutes of the court. No motion for new trial was filed at that term; no statement of the facts was prepared, neither was there any order made by the judge allowing any time after adjournment of the court for the making and filing of a statement of facts and bills of exception. The term of court expired on the 19th day of December, 1903. No action was taken in the court with reference to the case until the October term, 1904, when, on the 24th day of October, 1904, Mi Palmo filed a motion in the district court that the court should enter nunc pro tunc the judgment upon the verdict which was pronounced at the time that it was rendered. This motion was resisted by the defendants, but was granted by the court, and the judgment was entered in favor of Mi Palmo against Slayden & Co. for the amount of the verdict with interest; to which Slayden & Co. excepted and filed a motion for a new trial and in arrest of judgment, which were overruled, whereupon Slayden & Co. gave notice of appeal which was perfected in due time. Slayden & Co. then prepared a bill of exceptions to the action of the court in entering the judgment nunc pro tunc in which was embodied a statement of the facts, approved at the trial in November, 1903, which was approved by the trial court. The defendants below also filed bills of exception which were reserved at the trial in 1903 but which were not approved until the entry of the judgment nunc pro tunc in 1904. Slayden & Co. carried the case to the Court of Civil Appeals, whereupon Palmo made a motion in that court to make out the statement of facts and bills of exception which had been filed after the entry of the judgment nunc pro tunc, which motion was overruled. The Court of Civil Appeals considered the statement of facts, and reversed the judgment of the district court upon a question which it could not have considered without the statement of facts produced on the trial.

The plaintiff in error presents to this court the proposition that the law does not authorize the making of a statement of facts in this case after the adjournment of the term at which the case was tried and for that reason the Court of Civil Appeals erred in not striking out the statement of facts and in reversing the judgment upon the question on which its reversal depends. The defendants in error present to this court the proposition that the district court had no power to enter the judgment nunc pro tunc in this case, because there was no memorandum or writing in the records of the district court of the previous term indicating that the judge of that court had actually pronounced a judgment upon the verdict. The application for writ of error was granted because of the conflict between the decision of the Court of Civil Appeals in this case and the opinion of the Supreme Court in the case of Teas v. McDonald, 13 Tex. 349, 65 Am. Dec. 65. In the case cited the district judge heard the evidence at one term of the court and, by consent of the attorneys, took the case under advisement until a subsequent term, more than a year from the time of the hearing, and, at the latter term, entered judgment upon the testimony formerly introduced, and then made a statement of the facts to which he certified, to the effect that the statement contained "all the evidence adduced on the trial as well as I recollect it after the lapse of so long a period of time." In passing upon the statement of facts, the Supreme Court said: "It is well settled that in the absence of a statement of all the facts, this court cannot revise the rulings of the court below in giving or refusing instructions. It is evident that the statement in the record cannot be received as an authentic statement of the facts, for two reasons. It was not made out and certified to by the judge until a year after the trial, and the certificate does not purport that it certainly contains all the evidence adduced...