Whittaker v. Gee, Case No. 2054.
| Decision Date | 03 March 1885 |
| Docket Number | Case No. 2054. |
| Citation | 63 Tex. 435 |
| Court | Texas Supreme Court |
| Parties | COURTNEY A. WHITTAKER v. GEO. L. GEE ET AL. |
ERROR from Waller. Tried below before the Hon. Wm. H. Burkhart.
On the 5th of April, 1884, plaintiff in error filed a motion in the district court of Waller county to reinstate this case upon the docket of that court for a rehearing. The reasons assigned in support of the motion were as follows: “For this, that on the 18th day of April, 1881, at the hearing of said cause, there was a mistrial or miscarriage of justice, in the judgment rendered not being final, as will appear from a mandate of the supreme court, to which court plaintiff took the case on a writ of error, the mandate being now on file for its inspection and observance.”
On the 11th day of April the defendants interposed an answer to the effect that on the 18th of April, 1881, there was a finding by the court, as shown by the docket, that the plaintiff take nothing and pay costs, which was legally a final judgment for all the defendants against the plaintiff, and asked that any error in the proceedings be amended according to the truth and justice of the case.
Judgment rendered on the 16th of April, 1884, making the original judgment of April 18, 1881, conform to the entry on the judge's docket, and adding the name of A. Whittaker as a party defendant in the judgment, his name having been omitted by mistake in entering the judgment on the minutes of the court.
E. Blane, for plaintiff in error.
A. J. Harvey and M. M. Browne, for defendant in error.
Frequent decisions of this court have settled the right to have a judgment amended after the expiration of the term at which it was obtained, when, through mistake or clerical error, the record does not speak fully or truly the judgment actually rendered in a cause. Ximines v. Ximines, 43 Tex., 464; Russell v. Miller, 40 Tex., 500;Ramsey v. McCauley, 9 Tex., 106;Burnett v. State, 14 Tex., 455.
In this case the only defect in the judgment was the omission of the name of one of the parties in whose favor it was rendered. This was established by the notes upon the docket made by the presiding judge, and it was entirely proper and legal for him to order the amendment accordingly.
As this could have been done after the adjournment of the term, had no appeal been taken from the defective judgment, so there was no objection to the amendment being made after the appeal had been dismissed from this court on...
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