Ximenes v. Ximenes

• Decision Date: 01 January 1875
• Citation: 43 Tex. 458
• Parties: MELCHIOR XIMENES v. URSULA XIMENES.
• Court: Texas Supreme Court

43 Tex. 458

MELCHIOR XIMENES

v.URSULA XIMENES.

Supreme Court of Texas.

1875.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

May 4th, 1875, Melchior Ximenes filed a motion representing that at the term of 1873 of this court the case No. 1669, of Melchior Ximenes and W. D. Mays v. Ursula Ximenes came on to be heard, having been submitted on the briefs of the several appellants and of the appellee; that the opinion of the court was delivered on the 30th of September, 1873, in which the rights of this appellant were recognized as claimed in his pleadings in the District Court, and favorably passed upon, the court saying in the opinion that Melchior Ximenes will be entitled to recover the full amount of the notes against S. S. Smith; that on the same day, 30th September, an entry was made on the docket of this court as follows: “Reversed in part and affirmed in part;” that, notwithstanding said opinion and entry on the docket, the judgment as entered upon the minutes of the court is to the effect that the judgment of the court be in all things confirmed. The motion was accompanied by a certified copy of the entry on the docket, and it referred to the opinion in the case of 39 Tex., p. 49,et seq. W. P. De Normandie, clerk of the Supreme Court, certified that the judgment was entered, on the direction of Justice Walker, after the court adjourned.

It was asked that the judgment of the court be entered nunc pro tunc in accordance with the entry upon the docket and the opinion of the court.

Ursula Ximenes and S. S. Smith, the defendants in the original suit, resisted the motion (1) because Melchior Ximenes never was a party to the cause in this court, not having given bond; (2) the judgment entered of record on 30th September, 1873, is complete in itself and cannot be vacated on such motion; (3) the judgment, being of a court having jurisdiction, can only be vacated by a direct action having for its object that purpose; (4) that twenty months and several terms of the court had elapsed, during which the judgment had been acquiesced in; and (5) because the court will not entertain a motion to enter a judgment nunc pro tunc when its records disclose the entry of a valid legal and complete judgment entered and approved at a former term.

And for equitable reasons resisting the motion, Smith showed by affidavit that the mandate had been filed in the District Court, and that under the judgment he had paid two-thirds of the judgment to Ursula Ximenes, and as to the remaining one-third, had paid part to her attorney, S. G. Newton, and had arranged with him for a credit for the remainder; that he had acted under the judgment in good faith; that Ursula was notoriously insolvent, and that he paid the money with the knowledge of Melchior and with no objection on his part, and that no part of the money so paid by him could be recovered of Ursula.

The additional facts so far as may be necessary appear in the opinion.

Waelder & Upson, for motion.

The facts upon which this motion is based are sufficiently explained in the motion. The entry upon the docket of the court, of which a certified copy is attached, shows what judgment the court intended to render and did render; the opinion delivered and published (39 Tex., 49) authorizes and requires the entry upon the docket; and the two together require a different judgment from that which is entered on the minutes.

The certificate of the clerk explains the reason of the variance between the docket entry and the entry upon the minutes.

While this branch of the question might open a wide field for discussion, we refrain from saying more than this: The private direction of a single judge to the clerk after the adjournment of the court is not the judgment of the court. To give to an entry thus made the sanctity of a judgment would be, to say the least of it, to treat the rights of litigants with much less care than the law accords to them.

What we now ask is not a review of the decision heretofore made. We do not ask or expect the court to examine into and pass upon the merits of the case.

What we do ask is a correct entry now of the judgment rendered then, or a correction of the minutes in so far as “may be necessary to carry out the judgment of the court.”

As we read the authorities upon that point, it is perfectly proper for the court to grant this motion.

In discussing the power of the court to reconsider a judgment given at a former term, Mr. Chief Justice Hemphill says:

“This limitation upon the authority of the court will not prevent the correction of clerical errors, or mistakes, or defects of form, or the addition of such clause as may be necessary to carry out the judgment of the court.” (Chambers v. Hodges, 3 Tex., 529.)

In our view, we ask exactly such a correction as is covered by the language of the chief justice.

So in the case of Burnett v. The State, 14 Tex., 456, Mr. Justice Wheeler says that “every court has a right to judge of its own records and minutes; and if it appears satisfactorily to them that an order was actually made at a former term and omitted to be entered by the clerk, they may at any time direct such order to be entered on the records as of the time when it was made.” (Referring to State v. McAlpin, 4 Ired., 140;5 Ired., 12.)

“If orders were made, and not entered at the time when made, it was competent to enter the order so made at a subsequent term.” (Rhodes v. The State, 29 Tex., 190.)

The judgment itself may be set right and amended by another part of the record.” (1 Bacon's Abr., tit. Amendment and Jeof., F., page 251; see also note on page 252.)

When there is anything in the record by which to amend, an amendment may be made.” And the American author refers to Gay v. Caldwell, Hardin, 64; Waldo v. Spencer, 4 Conn., 71; Davis v. Ballard, 7 Monr., 604; 8 Serg. & R., 157;3 Bibb, 232;5 Watts, 315.

Says Freeman, in his Work on Judgments, page 47, § 71: “The rule that the record admits of no alteration after the term is absolute.” And: “All courts have inherent power to correct clerical errors at any time and to make the judgment entry correspond with the judgment rendered.”

After stating the rule adopted in several States, that no record can be amended but by matter of record, the same author proceeds to say: “Undoubtedly, as in cases of application to enter judgment nunc pro tunc, the memoranda of the presiding judge upon the motion-docket and his written opinions, when required to be filed in the case, would generally be regarded as facts of the record.” (Freem. on Judgments, page 48, § 72.)

We do not see any reason to doubt the power of the court to make the correction, amendment, or entry of the judgment as rendered. The record itself shows the facts upon which this motion is based. There can be no dispute or difference of opinion as to the facts. This being so, we think the motion should be granted.

It may not be amiss to explain why this motion was not sooner made. The case was submitted during the summer of 1873--in the month of June--the opinion was delivered September 30, 1873, after the counsel had returned to their homes. A mandate issued according to the entry upon the minutes, and was filed in the District Court. In February, 1875, the 39th volume of reports was published, and it was not until then that the attention of counsel was or could well be called to the discrepancy between the judgment pronounced and that entered upon the minutes. Previous to the publication of the opinion there could be no reason to suspect mistake, error, or by whatever other name it might be called. It is not usual nor can it be incumbent upon parties to verify mandates by other parts of the record. When, however, the published opinion was found to be so variant from what the decision was believed to be we took the earliest opportunity of examining the docket of the court, and there found that the decision entered upon the docket was in accordance with the published opinion, and that a different entry had been made upon the minutes of the court. We then lost no time in filing this motion. In other words, we proceeded as soon after attention had been called to the error as was consistent with the ascertainment of all the facts.

To enable the court to protect the rights of innocent parties we will further state that the subject of litigation in this case was an amount of money due from S. S. Smith, in consideration of property sold to him by Melchior Ximenes, it being separate property. The money was claimed in this suit both by Melchior and Ursula, his former wife. The opinion of the court recognizes Melchior's right to the money, and the entry upon the minutes adjudges it to Ursula. We make this explanation for the purpose of saying that if Smith has paid any part of the amount adjudged against him to Ursula, under and...