Smith v. Moore

• Decision Date: 15 May 1919
• Docket Number: (No. 980.)
• Citation: 212 S.W. 988
• Parties: SMITH v. MOORE et al.
• Court: Texas Court of Appeals

212 S.W. 988

SMITH v. MOORE et al.

(No. 980.)

Court of Civil Appeals of Texas. El Paso.

May 15, 1919.

On Rehearing, June 12, 1919.

Error from District Court, Jones County; John B. Thomas, Judge.

Suit by R. D. Smith, as next friend of Sarah J. Moore, an incompetent, revived, on the death of the incompetent, in the name of Mrs. T. E. Smith, as administratrix, against Mrs. R. D. Moore and others. Judgment for defendants, and plaintiff administratrix brings error. Affirmed.

J. W. Moffett, of Abilene, and Eugene De Bogory, of Dallas, for plaintiff in error.

Sleeper, Boynton & Kendall and Marshall Surratt, all of Waco, Kirby & Davidson, of Abilene, and Chapman & Pope, of Anson, for defendants in error.

Statement of Case.

WALTHALL, J.

This suit was originally brought by R. D. Smith, as next friend of Sarah J. Moore, who, he alleged, was a non compos mentis, and had been such from infancy, to annul and set aside two deeds made by her, one to R. D. Moore and one to Margaret K. Moore, conveying certain lands, to recover said lands from defendant in error herein. Sarah J. Moore died pending the suit, and T. E. Smith, wife of said R. D. Smith, joined by her said husband, thereafter appeared and filed herein her petition as administratrix of the estate of Sarah J. Moore, asking that she be permitted to prosecute said suit.

Defendant in error thereupon filed her second amended answer, denying that Sarah J. Moore was non compos when she executed said deeds, and specially averring in substance that, after said deeds were made, R. D. Moore, since deceased, conveyed to Sarah J., in settlement and payment of the note which he had given her for her interest in said lands, a one-half interest in the Delk survey of 474.7 acres of land, and conveyed the other half interest therein to her husband, R. D. Smith, taking his notes therefor, and that he gave said notes to Sarah J. Moore (she being his sister); that shortly thereafter Sarah J. Moore made a deed of gift to her interest in said land to T. E. Smith, plaintiff in error herein, and released to R. D. Smith, without consideration, the vendor's lien retained in said notes, and that thereafter the Wooten Grocery Company acquired R. D. Smith's one-half interest in said land—and made said grocery company a party, and prayed in the alternative that in the event the court should find that said Sarah J. Moore was non compos when she executed said deeds to R. D. Moore and Margaret K. Moore, and annul them, that she recover of said T. E. Smith, R. D. Smith, and said Wooten Grocery Company the said Delk survey, which was the consideration paid by R. D. Moore for Sarah J. Moore's interest in the land he bought from her.

The Wooten Grocery Company appeared and joined issue with this defendant in error on her cross-bill, and not in any way joining in the issue between plaintiff in error and this defendant in error as to the validity of said deeds, or in any other respect.

The case came to trial in the district court on the 19th day of January, 1914, and the court submitted the case to the jury on two special issues, as follows:

Special Issue No. 1: "Did Sarah J. Moore, at the time of the signing of the deed from herself to Margaret K. Moore on April 30, 1881, have sufficient mental capacity to execute said deed, as mental capacity is defined in paragraph (b) of this charge?"

Special Issue No. 2: "Did Sarah J. Moore, at the time of signing of deed from herself to R. D. Moore, to wit, December 13, 1889, have sufficient mental capacity to execute same, as mental capacity is defined in paragraph (b) of this charge?"

The jury returned their verdict, and answered each one of said special issues, "Yes." Thereupon the court rendered judgment that the plaintiff take nothing as to the defendant Mrs. R. D. Moore, and that said defendant take nothing on her cross-bill against said Wooten Grocery Company; but in the entry of said judgment, by oversight, it was alleged, no disposition was made as to said Wooten Grocery Company.

Plaintiff in error thereupon filed her motion for a new trial, which, being overruled, she gave notice of appeal, which she perfected to the Ft. Worth Court of Civil Appeals; the transcript and statement of facts being filed therein on May 14, 1914, and the cause being numbered on the docket of that court No. 8050. In September thereafter appellant filed motion in that court to dismiss said appeal, which the court granted, and dismissed said appeal, October 17, 1914.

A short while before the one year expired after the rendition of said judgment, plaintiff in error herein filed her petition for writ of error in the court below from said judgment rendered therein, and, after much delay, removed said cause to the Ft. Worth Court of Civil Appeals by writ of error; the transcript and statement of facts being filed in that court on the 31st day of July, 1915, and said cause being numbered on the docket of that court 8315. Thereafter that court, on November 30, 1915, dismissed said writ of error on motion of the defendant in error, on the ground of plaintiff in error's laches in prosecuting said writ in the lower court.

Thereafter, on July 29, 1916, plaintiff in error filed her motion in the lower court to have said cause set down for trial, basing said motion on the ground that the judgment theretofore entered therein made no disposition of the defendant H. O. Wooten Grocery Company. Said motion remained upon the docket of said court until the January term, 1918, thereof, when, on the 4th day of February, 1918, the defendant in error filed her opposition to said motion, because the case had been theretofore tried and final judgment entered therein, and, in the alternative, if in the opinion of the court the judgment entered was not final, moving the court to amend the same and render its judgment nunc pro tunc, disposing of all the issues and all the parties thereto, which was filed the 4th day of February, 1918.

Said motion was heard by the court below on February 4, 1918, and on the 9th day of February the court below entered its judgment overruling the plaintiff in error's motion to set down the case for trial, and entered judgment nunc pro tunc, amending its former judgment entered so as to dispose of all the parties and issues in said cause, including the said defendant H. O. Wooten Grocery Company, to which act and ruling of the court the plaintiff in error excepted, and has brought the case to the Court of Civil Appeals by writ of error. By order of the Supreme Court the case has been sent to this court for trial.

Opinion.

The one question presented by the record, but presented and discussed by plaintiff in error under four assignments of error, is whether or not it was error for the trial court to refuse to retry the case on its merits, and in amending and correcting in open court its former judgment therein, so as to dispose of the defendant H. O. Wooten Grocery Company, and entering such corrected or amended judgment nunc pro tunc, as appears in the record.

Article 2015, Vernon's Sayles' Texas Civil Statutes, provides that:

"Where there shall be a mistake in the record of any judgment or decree, the judge may, in open court, and after notice of the application therefor has been given to the parties interested in such judgment or decree, amend the same according to the truth and justice of the case, and thereafter the execution shall conform to the judgment as amended."

The provisions of the quoted article seem to fit the conditions presented here. The case is similar to the question discussed on the motion for rehearing in the case of Moore et al. v. Toyah Valley Irrigation Co., 179 S. W. 550. In that case Chief Justice Harper, for this court, said:

"It is thus seen that the trouble in this case is, not that the court did not render a final judgment, but that it failed to enter a final judgment. The latter being the case, it is clear, under the numerous authorities, that the court has authority to correct its minutes, so as to show the judgment actually rendered."

The purpose of the Legislature in enacting the quoted article of the statute, evidently, was to meet just such conditions as are presented here. The judgment finally entered by the trial court states the proceedings had...