Parnell v. Barron

• Decision Date: 09 April 1924
• Docket Number: (No. 2308.)
• Citation: 261 S.W. 529
• Parties: PARNELL v. BARRON.
• Court: Texas Court of Appeals

261 S.W. 529

PARNELL v. BARRON.

(No. 2308.)

Court of Civil Appeals of Texas. Amarillo.

April 9, 1924.

Rehearing Denied May 14, 1924.

Error from Wichita County Court; Guy Rogers, Judge.

Action by J. D. Parnell against H. K. Barron. Judgment granted defendant's motion for new trial and set aside judgment for plaintiff, and plaintiff brings error. Reversed and rendered.

B. L. Morgan and Carrigan, Montgomery, Britain, Morgan & King, all of Wichita Falls, for plaintiff in error.

Martin & Oneal and J. V. Allred, all of Wichita Falls, for defendant in error.

HALL, C. J.

Plaintiff in error Parnell, doing business under the name of Call-Field Addition, sued defendant in error Barron upon an open account for goods, wares, and merchandise and for rent alleged to be due by defendant upon the lease of a certain building. The petition was filed February 8, 1921. The case remained on the docket until the October term, 1922, when it was dismissed by the court for want of prosecution and entry of such dismissal made on the judge's docket. Shortly thereafter, and during the same term of the court, Parnell filed a motion to have the judgment of dismissal set aside and to enter an order to that effect nunc pro tunc, as of December 1st, further praying that the case be set down for trial in its regular order. This motion was filed December 12, 1922. The order granting the motion recites that the cause was dismissed for want of prosecution at the October term, 1922, and that shortly thereafter, and during the October term of the court, it was reinstated and set down for trial, but that no entry on the trial docket was made to that effect, and the court then directs that the order be entered nunc pro tunc as of date December 1, 1922, and that the case be set down for trial in its regular order. No notice of the filing of said motion or of the entry of said order was given to Barron. On December 12, 1922, the plaintiff filed his amended petition, alleging that in making the rental contract plaintiff was acting by and through his duly authorized and qualified agent, L. L. Albritton, "who in making said contract was acting for plaintiff herein." The case was called for trial that day, and the defendant objected to trial for the reason that the case had been dismissed on October 30, 1922, at a previous term, when a final judgment of dismissal had been rendered, which objections were overruled and the case proceeded to trial before a jury. On the following day plaintiff Parnell filed a motion, praying the court to set aside the judgment of dismissal rendered and entered at the former term of said court, viz., on October 30, 1922, and to enter an order nunc pro tunc as of December 1, 1922. The defendant in error contends that the motion and judgment referred to above and which, according to the record, are dated on December 12th, were filed and entered on December 13th and dated back one day. This contention is sustained by the court's bill of exceptions. On January 19, 1923, defendant filed a motion for new trial and praying that the cause be dismissed. In this motion he insisted that the court had no jurisdiction to try the cause on and after the 30th day of October, 1922, when the case had been dismissed. The motion further recites that there was no record evidence of any application being made on December 1, 1922, or at any time until after the trial on December 12, 1922, to set the judgment of dismissal of date October 30, 1922, aside; that there was no record evidence or memorandum whatever or any action or order by the court on December 1, 1922, or any time theretofore or thereafter, showing that the judgment of dismissal had been set aside and reinstating the cause. On February 1, 1923, the court sustained this motion of the defendant for a new trial and set aside the final judgment.

The plaintiff in error brings the case to this court without a statement of facts upon a transcript alone, and urges the following proposition:

"An order made by a court at a previous term, although there is no entry of the same upon the judge's docket, and no memorandum of such order is preserved, the judge may properly enter same nunc pro tunc upon oral testimony and his own recollection."

We think this proposition is sound. The bill of exceptions recites that the case was set for trial during the October term, 1922, and was by the court at that time dismissed for want of prosecution; that notation thereof was made upon the court's docket on October 30, 1922, and a judgment of dismissal entered in the minutes of the court; that thereafter and during the same term of court, the plaintiff appeared in open court in person and advised the court that he had intended and did intend to prosecute the cause, and asked that the case be reinstated and that the order of dismissal be set aside, which request was by the court granted, and the cause was at that time set down for a day in the next succeeding term of the court at which time the case was called and tried. The bill, which is evidently made out by the trial judge, further recites that no written pleadings were filed during the October term of the court, asking for the setting aside of said order of dismissal, and no notation on the court's action in reinstating the cause was noted upon the court's docket. But upon an application in writing, after trial, in the next succeeding term of the court, the court entered an order nunc pro tunc, reinstating said cause of action as of December 1, 1922, same being the date in which the plaintiff appeared in person in court, asked for and was granted a reinstatement of the case. The court could, of his own motion, and at the same term, set aside an order dismissing a case without the service of notice upon the defendant. Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697; Cohen v. Moore, 101 Tex. 45, 104 S. W. 1053; Tammen v. Schaefer, 45 Tex. Civ. App. 522, 101 S. W. 468; Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 483. Moreover, the court had authority at the succeeding term to enter nunc pro tunc the order setting aside the judgment of dismissal without the introduction of any evidence, and even in the absence of any notation upon his docket. Dowdle v. U. S. Fidelity & G. Co. (Tex. Com. App.) 255 S. W. 388. His personal recollection was sufficient. State v. Larkin, 41 Tex. Civ. App. 253, 90 S. W. 916; Moore v. Chapman (Tex. Civ. App.) 168 S. W. 6.

In the bill of exceptions referred to above, the court expressly states that his order setting aside the judgment of dismissal and reinstating the case was actually made and during the same term of court. This being true, the order of December 12, 1922, was properly entered, and the case stood for trial regularly upon the docket of the court. After the case was tried, resulting in a judgment for plaintiff Parnell, then the court set the judgment aside, together with his previous order of December 12, 1922, which we think is error. The judgment is therefore reversed and is here rendered, reinstating and affirming the trial court's judgment in favor of Parnell for the amount sued for.

Reversed and rendered.

On Motion for Rehearing.

In order that a better understanding of the contentions here may be had, we will briefly outline the proceedings in this case in the trial court, in their chronological order:

Plaintiff has filed his original petition February 28, 1921. Defendant's original answer was filed March 31, 1922. No further action was had in the case until the October term...