Zamora v. Salinas
| Decision Date | 30 November 1967 |
| Docket Number | No. 349,349 |
| Citation | 422 S.W.2d 249 |
| Parties | Guadalupe Garza ZAMORA et al., Appellants, v. Miguel SALINAS et al., Appellees. . Corpus Christi |
| Court | Texas Court of Appeals |
J. E. Wilkins, of Wilkins & Wilkins, McAllen, for appellants.
H. H. Rankin, Jr., of Rankin, Kern & Martinez, McAllen, for appellees.
This appeal is from a judgment rendered and entered nunc pro tunc on March 14, 1967 as of the 8th day of October 1965, the date of the original judgment herein.
This suit was brought by appellees, plaintiffs below, against appellant Zamora and other defendants for partition of two tracts of land situated in Hidalgo County, Texas. The issue of title was also involved.
The original judgment of October 8, 1965 recited in the first paragraph in substance that the plaintiffs announced in open court that they no longer desired to pursue the case against the defendants and desired to dismiss the cause 'without prejudice' to their rights. However, the judgment in the second paragraph thereof ordered that plaintiffs cause against the defendants be dismissed 'with prejudice' to plaintiffs and taxed the costs against them. The written judgment signed by the trial judge was precisely recorded in the minutes.
Thereafter on November 21, 1966, more than thirteen months after entry of the original judgment, the plaintiffs filed a motion for judgment nunc pro tunc alleging in substance that the first paragraph of the original order of dismissal correctly reflected the announcement and motion of the attorneys for plaintiffs, and that the court had announced that it would grant plaintiffs' motion to dismiss 'without prejudice'; that through a clerical error or mistake the last paragraph of the original order of dismissal signed by the court read that the cause was dismissed 'with prejudice' instead of 'without prejudice' and that the judgment as filed did not accurately reflect the ruling of the court. Plaintiffs further alleged that the attorney for plaintiff had only learned of such clerical error or mistake during the then current term of court. Plaintiffs prayed that the court enter a judgment, the form of which was attached to their motion, finding that the clerical error or mistake had been made and ordering by nunc pro tunc judgment that the case be dismissed 'without prejudice' to plaintiffs.
The trial court set a hearing on plaintiffs' motion for judgment nunc pro tunc and ordered notice of same be given to the defendants. The transcript contains a certificate of service of notice on the defendants or their attorneys. Appellant Zamora filed written opposition to plaintiffs' motion for judgment nunc pro tunc generally raising the question involved in this appeal. None of the other defendants in the court below opposed plaintiffs' motion.
The trial court conducted a hearing on the matter on January 5, 1967 and took the case under advisement until March 14, 1967, on which date plaintiffs' motion was granted and a judgment nunc pro tunc of dismissal 'without prejudice' was rendered and entered. Among other things that judgment recited the following:
'* * * that through clerical error or mistake, the Judgment as signed and filed dismisses the cause with prejudice and further appearing no third parties rights have been affected or changed in the period intervening the signing of that order and the present time and further that Plaintiffs' Motion for Judgment Nunc Pro Tunc should be granted and that Plaintiffs' request for an Order of Dismissal without prejudice should be granted nunc pro tunc.'
The evidence at the hearing of January 5, 1967 consisted of testimony of the attorney for appellees, the testimony of the attorney for Zamora, that of Zamora, and two exhibits. Zamora's testimony was not helpful and that of his attorney related to events occurring after the original judgment. In substance, the attorney for Zamora testified that he had explained to Zamora that the original judgment dismissed the case with prejudice and foreclosed plaintiffs' rights; that Zamora was further advised he could cut a certain fence on the property involved and after Zamora did so a criminal complaint was filed against him; that Zamora was arrested and required to post an appearance bond of $750.00, which bond was admitted into evidence; that Zamora had told his attorney he had depended on the original judgment. The stipulated testimony of the attorney for appellees was as follows:
'* * * that on October 8th, 1965, during a call docket at which time the Court had asked for an announcement of some sort on this case, that Stonewall Van Wie did announce that he had with him an order for dismissal without prejudice and would present it to the Court after the call of the docket in his Chambers; thereafter, Stonewall Van Wie went to the Chambers of the Court, presented him with a document which he represented to be an order of dismissal without prejudice, and which document was signed and entered by the Court on that day, which is the order of dismissal which is in question this morning on this Motion for Judgment Nunc Pro Tunc.'
There was also admitted into evidence a letter...
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