Yarbrough v. Etheredge

• Decision Date: 19 February 1914
• Citation: 163 S.W. 998
• Parties: YARBROUGH v. ETHEREDGE.
• Court: Texas Court of Appeals

163 S.W. 998

YARBROUGH v. ETHEREDGE.

Court of Civil Appeals of Texas. El Paso.

February 19, 1914.

Appeal from District Court, Reeves County; S. J. Isaacs, Judge.

Action by N. J. Etheredge against W. C. Yarbrough. From a judgment for plaintiff, defendant appeals. Affirmed.

Ross & Hubbard, of Pecos, Odell & Turner and W. L. Mathis, all of Ft. Worth, Gibson & Callaway, of Dallas, and Homer L. Baughman, of Ft. Worth, for appellant. Ben Randals, of Pecos, and S. W. White, of Van Horn, for appellee.

HARPER, J.

On April 20, 1913, appellee, N. J. Etheredge, plaintiff below, filed in the district court of Reeves county a motion to amend or correct a judgment theretofore entered in the same cause. In said motion appellee alleges that on the 20th day of April, 1912, he filed in said cause his second amended original petition, and in said motion substantially sets out said petition, same showing that plaintiff sought the recovery of the entire property therein described. Appellee further alleges in said motion that on a following date, to wit, April 30, 1912, judgment was rendered for plaintiff in all things as prayed for in his petition, but that in preparing and entering the decree, through inadvertence, a mistake was made in the record of said judgment, and it was erroneously recited that plaintiff should recover from defendant (appellant) an undivided one-half interest in and to said property, whereas, it should have recited the recovery of said property in its entirety, and that it was apparent from said erroneous decree that it was intended plaintiff should recover as prayed for in his petition. On May 7, 1913, after due hearing, the trial judge granted said motion, and amended or corrected said judgment, making it conform to the prayer contained in said petition, from which action the defendant appeals to this court.

Appellant's first assignment of error reads: "The only evidence in the record is the first amended original petition of the plaintiff, Etheredge, and the memorandum of the court's table docket, which within themselves are not sufficient to support a judgment correcting the original judgment, allowing the plaintiff to recover all of said property, instead of one-half. There was no judgment or other evidence introduced to show that plaintiff recovered one-half or any other interest in the original judgment as entered. This evidence is fully set out in said petition and the same memorandum, and is insufficient to support a judgment, correcting any other judgment in any particular."

The second and third assignments and all propositions raise substantially the same questions. Plaintiff introduced, in support of his motion: First. The petition upon which the original judgment entry was made, which contained, among others, the following allegations: That plaintiff, Etheredge, owned a one-half interest in certain Tarrant county property, describing same; that T. F. Hefner owned the other one-half interest;...