Truelove v. Truelove

• Decision Date: 26 October 1953
• Docket Number: No. 6333,6333
• Citation: 266 S.W.2d 491
• Parties: TRUELOVE v. TRUELOVE et ux.
• Court: Texas Court of Appeals

Page 491

266 S.W.2d 491

TRUELOVE v. TRUELOVE et ux.

No. 6333.

Court of Civil Appeals of Texas, Amarillo.

Oct. 26, 1953.

Rehearing Denied Nov. 30, 1953.

Lawing & Hazlett, Jack Alexander, Borger, for appellant.

Hood & Hood, Borger, for appellees.

PITTS, Chief Justice.

This is an appeal from a nunc pro tunc judgment duly entered denying the application of proponent, C. G. (Cliff) Truelove, to have the will of his brother V. C. (Clyde) Truelove, deceased, admitted to probate. The testator on July 15, 1946, executed the will 'in duplicate originals' devising and bequeathing all of his property of every kind and character to his brother, C. G. Truelove, and named him independent executor thereof, then died thereafter on August 16, 1951, while a resident of Borger, Hutchinson County, Texas. The said will likewise contained a paragraph set out in the following language:

'I have purposely excluded all of my relatives other than C. G. Truelove, my brother, named as sole devisee in this will for the reason that the said C. G. Truelove is now and has been helping to provide for the support of my father J. A. Truelove and my mother, Lottie Truelove, and will continue to provide for and support my father and mother.'

The will was admitted to probate by the Hutchinson County Court on May 13, 1952, over the contest of J. A. Truelove and wife, Lottie Truelove, parents of both the testator and proponent, and an appeal was thereafter perfected to the District Court where a trial de novo was had.

The case was there tried before a jury which found that the testator, V. C. Truelove, had testamentary capacity to execute the will on the date thereof but it further found that the will was executed and procured by reason of undue influence exerted upon V. C. Truelove by his said brother, C. G. Truelove, proponent herein. Thereafter the trial court announced judgment for the contestants upon the jury's answer to the second special issue finding the existence of undue influence. However, the trial court on November 7, 1952, inadvertently and contrary to its announcement and expressed intentions, signed a wrong form of judgment which, in effect, set aside such jury finding and admitted the will to probate. The erroneous judgment was duly filed and entered of record without the knowledge of contestants or their attorneys and without the trial court realizing the mistake made until on or about February 9, 1953, when a motion for the entry of a proper judgment nunc pro tunc was filed, due notice thereof given and a proper hearing had thereon with the result that the trial court set aside the erroneous judgment and the judgment first herein mentioned was signed and entered by the trial court denying the will to probate, from which judgment an appeal has been perfected to this court by proponent.

Proponent attacks the nunc pro tunc proceedings, charging error on the grounds that such proceedings could not legally authorize the substitution of one judgment for another and that such proceeding certainly could not be legally had at a time more than thirty days after the entry of the first judgment in a trial court that holds continuous terms and at a time also long after the term of court at which the entry of the first judgment had ended. The record reflects that the case went to trial on October 1, 1952, and the jury returned its verdict on October 3, 1952. Thereafter both parties sought judgment on the jury verdict and both parties had drawn judgments, respectively, as to form, supporting their respective contentions and had presented both forms to the trial court to sign. Proponent filed a motion for judgment, urging therein that the trial court set aside and disregard the answer of the jury to the second special issue finding the existence of undue influence on the grounds that such finding had no support in the evidence and render judgment admitting the will to probate. Proponent prepared such a judgment in keeping with his motion, which was duly filed, and left the motion together with the judgment on the desk of the trial judge. These matters were duly considered by the trial judge until on or about November 5, 1952, when he in open court announced that judgment would be entered for contestants upon the jury verdict. The next day on November 6, 1952, the trial court wrote and posted a letter to counsel for both parties, receipt of which letter is acknowledged by both parties, advising that judgment would be entered for contestants denying the will to probate and urging that such a judgment in form be submitted to him at an early date. Next day the trial court made the following entry on his court docket:

"Nov. 7, 1952. Judgment for Plaintiffs, J. A. Truelove and wife, as prayed for as per Judgment this date and which is this date; Nov. 7, 1952, filed with the Clerk of this Court. Costs taxed against Defendant, C. G. Truelove. Defendant gave notice of Appeal to Honorable Court of Civil Appeals.

'/s/ Jack Allen

Judge Presiding."

On that said day the record reflects that the trial judge likewise 'inadvertently and unintentionally' signed and entered the wrong form of judgment (that is, the form presented to him by proponent) contrary to the pronouncement of judgment previously made by him in open court, by letter to counsel, and by docket entry made on the same day. Upon discovery of the mistake of the court on February 7, 1953, counsel for contestants on February 9, 1953, filed a motion for the entry of a proper judgment nunc pro tunc, attaching thereto a suggestive proper form of judgment. Notice for a hearing thereon was given and such a hearing was had on February 18, 1953, with all interested parties present when the trial court sustained the motion, revoked, cancelled and set aside its erroneous judgment previously entered on November 7, 1952, and in lieu thereof entered a corrected judgment nunc pro tunc in accordance with the pronouncements previously made denying the will to probate.

It is our opinion that the proceedings challenged by proponent were conducted in accordance with the rules of law governing such matters as was announced in the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, wherein the Supreme Court held that the failure to correctly or fully enter a judgment upon the Minutes of the court does not annul it but merely makes the court's record imperfect; that a court has inherent power, independent of any statute, to correct a judgment and make it speak the truth by a proper entry nunc pro tunc so as to properly recite the effect of its judgment, and that a court's jurisdiction over its judgment records does not end with the term under such circumstances as presented here, but the matter in question is regarded as pending under such circumstances until a proper judgment is correctly entered. For these reasons a proper judgment can be correctly entered without the necessity of instituting an independent suit to get such done.

The rules of law announced in the Coleman-Zapp case, supra, have since been consistently followed by our courts. In the recent case of Knox v. Long, 257 S.W.2d 289, the Supreme Court cited that case with approval and quoted from it the rules governing a factual situation similar to the one at bar wherein the trial court had inadvertently and by mistake entered an order dismissing a case at a former term of the court when the same was properly corrected at a subsequent term of the court by the entry of its proper judgment after notice and a hearing was had. The court there cites numerous authorities in support of its action, among them being Rules 316 and 317, Vernon's Texas Rules of Civil Procedure.

Proponent also complains about alleged irregularities in contestants' pleadings in the nunc pro tunc proceedings, a failure to attach exhibits as pleaded and the time for hearing on the motion. However, such complaints are not well taken. It appears that all parties were aware of the issues raised, knew of the exhibits mentioned and their contents and all parties had notice of the hearing, appeared and were heard. If any error was committed, such was a harmless error as a result of which nobody's rights were prejudiced. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, and Rules 434 and 503, Texas Rules of Civil Procedure.

Proponent further charges error was committed on the alleged grounds that there was no evidence to support the submission of an issue on undue influence to the jury or the jury finding to the effect that the will of testator was executed as a result of undue influence exerted upon testator by proponent and therefore no evidence to support the trial court's judgment based on such jury finding. According to the record neither party objected to the trial court's charge or any part thereof. In connection with the submission of the issue on undue influence the court gave the following instruction:

'You are instructed that 'undue influence' that invalidates a will is that influence which destroys the free agency of the testator and places him where he is dominated by another, and which acts directly on his mind at the time that said instrument is executed. In this connection you are instructed that weakness of body and mind, whether produced by the infirmatives of age or by disease, may be considered as a material circumstance in determining whether the testator was in condition to be susceptible of undue influence.

'You are further instructed that undue influence can be established by circumstantial as well as by direct evidence. Opportunity to exert undue influence may be considered, but you are instructed that undue influence cannot be inferred alone from motive or opportunity, but there must be some testimony to show that undue influence not only existed but that it was exercised with respect to the making of the will.'

Under these instructions and the evidence heard the jury found such undue influence was so exerted by proponent.

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