S. W. Slayden & Co. v. Palmo

• Decision Date: 08 November 1905
• Citation: 90 S.W. 908
• Parties: S. W. SLAYDEN & CO. v. PALMO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 908

S. W. SLAYDEN & CO. v. PALMO.^*

Court of Civil Appeals of Texas.

November 8, 1905.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by M. Palmo against S. W. Slayden & Co. From a judgment for plaintiff, defendant appeals. Reversed.

Rehearing denied December 20, 1905.

Clark & Bolinger and Eugene Williams, for appellant. J. R. Downs and Richard I. Munroe, for appellee.

FISHER, C. J.

This is a suit by Palmo against S. W. Slayden & Co., a firm alleged to be composed of S. W. Slayden, Ozias Bailey and T. B. Slayden, to recover on a written contract, expressed in the following words: "Waco, Texas, November 23, 1897. S. W. Slayden, O. Bailey and T. B. Slayden. This contract shows that M. Palmo agrees to deed the Brazos plantation farm to S. W. Slayden or to whom S. W. Slayden may direct, in consideration of $6,000 in vendor's lien notes, to be approved by M. Palmo, or the note of S. W. Slayden for said amount, the purchaser of said Brazos plantation farm assuming the mortgage on said farm, on which there is a balance due of about $9,000. With the farm is included all stock, except one pair of mares and all farm implements, wagons and vehicles, except one buggy, and cotton seed sufficient to plant the farm next year; and all the corn and hay, household and kitchen furniture is also excepted, as well also as the cotton now on the farm. In addition to the $6,000 in notes, the said Palmo is to be released from payment of his account with S. W. Slayden & Company. [Signed] M. Palmo. S. W. Slayden & Company, per T. B. Slayden." And appended is this statement: "It is also understood that Palmo is to have the 50 acres of land in Rockport once owned by him." The appellee alleged a breach of this contract, and on a trial of the case at the November term, 1903, of the district court, a verdict was returned in his favor against S. W. Slayden & Co., S. W. Slayden, and O. Bailey, for the sum of $9,508.35. T. B. Slayden interposed the defense of minority, and no verdict and judgment was obtained against him. The defenses interposed by the appellants will be noticed as occasion might require in disposing of the assignments of errors. What is known as the November term of the court adjourned on the 19th of December, 1903. The verdict of the jury was returned and entered on November 13, 1903. No judgment was entered of record in the minutes during that term of court. Thereafter the appellee filed a motion in that court to enter a judgment nunc pro tunc, which motion was heard and determined at the October term, 1904, of the court, which resulted in granting the motion and in a judgment being rendered in favor of appellee against S. W. Slayden & Company and S. W. Slayden and O. Bailey, and in favor of T. B. Slayden, in accordance with the verdict of the jury. From this judgment the appellants prosecute this appeal, with a bill of exceptions contained in the record objecting to the entry of the judgment nunc pro tunc for various reasons, which bill is properly approved by the trial judge; with also the record containing a statement of facts of the evidence introduced in the original trial of the case, which is approved by the trial judge subsequent to the time of the entry of the judgment nunc pro tunc.

It is contended by the appellants that the trial court erred in rendering judgment upon the verdict of the jury, and ordering its entry nunc pro tunc, for the reason that it was not shown that a judgment was ever rendered or that any order to that effect was made. As we construe the bill of exceptions, it does not purport to state all the facts that were before the court in the trial of the motion to enter the judgment nunc pro tunc. Some of the proceedings are shown, but the bill does not negative the fact that other evidence or facts might have been considered by the court. It does appear from the record that the judge who originally tried the case and received the verdict of the jury also heard and considered and granted the motion to enter the judgment nunc pro tunc. There is some evidence in the bill of exceptions, or, in other words, the evidence there stated authorizes the conclusion that some evidence was heard by the court in determining the question whether a judgment was rendered, and whether it was proper that one should be entered. The bill of exceptions being in this condition, we must conclude, in support of the conclusion reached by the trial court, that the judge who disposed of the motion heard some other evidence, or that there was some fact within his personal knowledge that would justify the order entered in the nunc pro tunc proceeding. The judge may have had a personal recollection about the matter, which when acted upon by him should be given the dignity of evidence in determining whether he did or did not err in reaching the conclusion that the plaintiff was entitled to the judgment nunc pro tunc. In the recent case of Ft. Worth & Denver City Railway Co. v. Roberts, 81 S. W. 26, the Supreme Court has this to say: "That an order of court which did not appear upon its minutes, and of which there was no written memorandum upon the judge's docket or elsewhere, could be established by oral evidence, was held by this court at an early day. State v. Womack, 17 Tex. 238"—and quotes with approval the case of Ex parte Wight, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865, where, the question of the validity of an entry nunc pro tunc being under consideration, the ruling of the court was to the effect that the nunc pro tunc entry could be properly based upon the recollection of the judges who rendered the original judgment. Therefore, we reach the conclusion that the court did not err in rendering and entering the judgment nunc pro tunc.

It is insisted by appellee that the appellants are not entitled by law to prosecute the appeal of the original case from the entry of the judgment nunc pro tunc; that the law requires the appeal to be perfected within the time in which the original judgment should have been entered, and also that the bill of exceptions as to any errors committed by the court in the original trial of the case, and the statement of facts relied upon by the appellants, should have been presented and filed within the time required by statute from the date at which the case was originally disposed of, or from the term of the court in which the trial was had. These questions were practically passed upon by this court at its last term in overruling the motion made by the appellee asserting the same contention now made. We there held, and now hold, that the appellants had the right to prosecute the appeal of the original case from the date of the entry of the judgment nunc pro tunc. Henry v. Boulter (Tex. Civ. App.) 63 S. W. 1056; Bassett v. Mills, 89 Tex. 162, 34 S. W. 93; and United States v. Gomez, 1 Wall. 690, 17 L. Ed. 677. These cases are explicit to the point that an appeal of the main case may lie from the entry of the judgment nunc pro tunc. If this is conceded, we fail to see what the exercise of this right would accomplish, unless the appellant would be entitled to make up and bring up an entire record of law and fact relating to the questions that arose upon the original trial. The concession that the right of appeal would lie from the judgment nunc pro tunc must necessarily imply that it includes all the privileges and rights granted to an appellant by the statute who may see fit to exercise his privilege of appealing.

Appellants' first assignment of error complains of the error in the...