161 S.W.2d 778 | Tex. | 1942
M.A. Kuhn and wife filed suit against Palo Duro Corporation, W.T. Taylor, James C. Jones and A.T. Brannon to recover damages.
A jury trial resulted in a judgment in favor of Palo Duro Corporation, a corporation, W.T. Taylor and James C. Jones and against M.A. Kuhn and wife. The judgment did not dispose of A.T. Brannon. An appeal was perfected from this judgment to the Court of Civil Appeals at Texarkana by M.A. Kuhn and wife. The appeal bond was filed on the 10th day of January, 1940. Upon motion the Court of Civil Appeals, on the 20th day of March, 1941, dismissed the appeal on the ground that the judgment was not final in that such judgment did not dispose of a party, towit, A.T. Brannon. No appeal was prosecuted from that ruling. M.A. Kuhn and wife sought and obtained the entry in the trial court of a judgment alike in all material respects to the one above described, except that A.T. Brannon was dismissed from the cause. It recited:
"This judgment is entered nunc pro tunc for the purpose of correcting the record, this 29th day of March, A.D. 1941." *127
No appeal bond was filed after the entry of the last mentioned judgment. The last mentioned judgment was presented to the Court of Civil Appeals by motion and supplemental transcript to correct the record. The Court of Civil Appeals, over the objection of Jones et al, reinstated the appeal of M.A. Kuhn and wife and upon the merits reversed the judgment of the trial court and remanded the cause for another trial. Kuhn v. Palo Duro Corp.,
This case is ruled by the decision of the Supreme Court in the case of Davis v. McCray Refrigerator Sales Corp.,
"It is well settled in this State that when a judgment is pronounced at one term and not entered of record at that term but is entered nunc pro tunc at the succeeding term, the right of appeal from such nunc pro tunc order dates from the entry thereof. Peurifoy v. Wiebusch,
The judgment of the Court of Civil Appeals is reversed and the appeal is dismissed.
Opinion adopted by the Supreme Court April 22, 1942.
Rehearing overruled May 13, 1942. *128