Waggoner v. Davis
| Decision Date | 30 April 1924 |
| Docket Number | (No. 1105.) |
| Parties | WAGGONER v. DAVIS, Federal Agent. |
| Court | Texas Court of Appeals |
Appeal from Harris County Court; Roy F. Campbell, Judge.
Action by B. P. Waggoner against James C. Davis, Federal Agent. Judgment for defendant, and plaintiff appeals. Reformed and affirmed.
Fogle & Gentry, of Houston, for appellant.
Baker, Botts, Parker & Garwood, of Houston, for appellee.
This case was tried at the July term, 1922, of the county court at law of Harris county. As no judgment was entered on the minutes of the court at that time, appellee filed a motion at the next term to have judgment entered nunc pro tunc, which, after due presentation, was so entered. Appellant duly excepted to the order of the court sustaining appellee's motion, and has prosecuted his appeal to this court, on the ground that the judgment of the court granting the motion was without support in the evidence.
Appellant instituted this suit, alleging that he was the owner of certain hay, of the value of $580, which was destroyed by fire through the negligence of appellee's agents. Appellee answered by a general denial and certain special pleas. Two other parties intervened in the case, but as their pleas are not in the transcript, and we have no statement of the facts on which the case was tried, we do not know the nature of their claims. Question No. 1 inquired of the jury whether appellee's agents burned the hay, to which they answered, "No." As this negative answer was a complete defense to appellant's cause of action, the jury did not answer the other questions, under the instruction of the court.
Appellant's bill of exception to the action of the court entering the judgment nunc pro tunc shows the trial of this case at the July term, the court's charge, the verdict of the jury, the filing by appellant of a motion for a new trial, in which he alleged, under three counts, that the court erred "in rendering a judgment for the defendant," and the order of the court overruling appellant's motion for new trial, noting his exceptions, giving notice of appeal, and allowing the usual time in which to file his statement of facts and bills of exception. After reciting the foregoing facts, the bill of exception contains this statement:
"That the foregoing [referring to the facts just stated by us] constitutes all that was said and done by the court during the July term in connection with said cause after the jury returned into the court with their verdict."
The interveners did not except to the judgment as entered, nor have they prosecuted an appeal therefrom. Appellant has made no statement showing the relation of interveners to the original suit, nor the effect of the court's judgment on the merits of the original cause of action in entering a judgment against interveners; that is to say, appellant makes no showing that the entry of the judgment against interveners is not a disposition of all issuable facts that could arise on another trial. As the court had jurisdiction of the parties to the motion, of the subject-matter involved in the motion, and had the power to grant the relief prayed for, the judgment against interveners is not void, and as they have made no complaint against the judgment, and as appellant has made no showing that the judgment against interveners should be reversed in order to protect his interests and do equity among the parties, we have no authority to disturb the entry of the judgment by the trial court against interveners.
We agree with appellant that his bill of exception makes an affirmative showing that no judgment was actually rendered by the trial court at the July term. On the recitations of this bill, we cannot presume that the court heard other evidence than that shown therein, nor that the court did anything except as reflected by the bill, all of which we have given in our statement of this case. Therefore, as no presumptions can be indulged in support of the judgment, Dowdle v. U. S. Fidelity & Guaranty Co. (Tex. Com. App.) 255 S. W. 388 (), has no application to this case.
As no judgment was rendered by the court at the July term, the court's judgment against appellant at the succeeding term is without support in the evidence. This follows on the proposition that —
"In jurisdictions where there are terms of court, a...
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