1 S.W.2d 681 | Tex. App. | 1927
This suit was filed by appellee to recover upon a promissory note executed by appellant. The suit was tiled November 29, 1922, and appellant was alleged to reside in Mitchell county, Tex. On March 3, 1924, appellant, defendant in said cause, not having been served, said cause was "dismissed at plaintiff's cost." On November 18, 1925, the plaintiff in said cause, appellee herein, filed its motion to reinstate said cause, which motion was on the same date granted and said cause reinstated. On December 18, 1925, citation was issued to Mitchell county and served on defendant, appellant herein, on December 23, 1925. On January 2, 1926, defendant, appellant herein, filed his answer. On January 6, 1926, judgment by default was rendered against appellant. On motion of appellant, this judgment was set aside. Said cause was thereafter tried on November 26, 1926, before the court without a Jury, and judgment rendered for plaintiff, appellee herein, from which judgment appellant has duly perfected his appeal, and presents the record here for review. None *682
of the orders entered by the court were prepared and entered in the minutes of the court, but the notations of said orders as made by the trial court on his trial docket are included in the transcript. These entries we think are improperly included in the transcript, and, if this were the only way said orders were shown, the same could not be considered. Stark v. Miller,
Under his first assignment, appellant contends, in effect, that, when an order or judgment is taken in a cause, and same is not entered in the minutes of the court at the term at which same was taken, the court may, at a later term, order same entered nunc pro tune; that is, as of the date said order or judgment was taken. We think, when the position of the parties has undergone no change and no intervening rights have accrued, the trial court not only has the power to enter such judgment or order at a later term as of the date same was actually made, but that it is his duty to so do. Coleman v. Zapp et al.,
Under appellant's second assignment he contends, in effect: The court erred in holding that the order of dismissal as made on the docket of the court on March 3, 1924, but not carried forward into the minutes of the court at the term same was taken was not a final judgment. Under his third assignment, appellant contends, in effect, that the court erred in reinstating said cause on his docket at a later term. In his findings of fact, the court found that the suit was filed on the 29th of November, 1922, and further:
"I find that said cause was passed from term to term of the court and an entry was made on the docket of this court on the 3d day of March, 1924, at a regular day and term of this court, as follows: `Dismissed at plaintiff's cost' — which entry was made without the knowledge of plaintiff, and that said cause was retired from the docket of the court, though no record was made in the minutes of the court of the action. I find that the costs were taxed against the plaintiff, T. B. Meeks Company, and that said costs included a final judgment, and that said costs were paid by the plaintiff. No further action was taken until November 18, 1925. I find that on November 18, 1925, the plaintiff by its attorney requested that the cause be reinstated on the docket, and it was so done by order of the court of that date," etc.
As a conclusion of law, the court says:
"The court concludes, first, that the order dismissing the cause as made on the docket of the court and not carried into the minutes of same was not a final judgment and that the court properly reinstated said cause on the docket."
A judgment of dismissal is as final for the purposes of an appeal as is a judgment on the merits. A motion to reinstate a cause is in legal effect a motion for a new trial. Green v. Green et al. (Tex.Com.App.)
We sustain all of the assignments above discussed, and reverse the judgment of the trial court, and here render judgment for appellant.