*1 Statutes; Act, 8 Am. Article Civil Instruments Vernon’s support Jur., therefore, proof, failed to 871. The Sections the trial court. Appeals (253 2d. S. W. of the Court of Civil The ruling 80), privilege plea so far on the reversed in as its case. is concerned and affirmed as to the merits County, is therefore of Anderson remanded to the District Court Texas, for trial its merits.
Opinion April 1, delivered 1953.
Rehearing May 6, overruled 1953.
Harryett Betty al H. Knox et v. Long et al.
No. April 8,1953. A-3871. Decided Rehearing 1953. May 6, overruled (257 289) Series, S.W. 2nd *3 Moody, Austin, Dan Burke, Longview, Hurst & Fulton Gilmer, & Hancock Fulton, petitioners. Edwin M. all of jurisdiction judgment trial court was without to vacate of dismissal and reinstate cases after ended. term Neither did jurisdiction it have requiring to make order Mrs. Knox to testify deprive so, her refusal to do her of her Hovey Elliott, 215, defense. Sup. v. 167 42 L.Ed. 17 U.S. 841; Republic 201; Ct. Supply Co., Snowden v. 239 S.W. 2d Ry. Burden, Texas & N.O. Co. v. 146 203 Texas 2d S.W. 522. Harrington Harrington, & Longview, Grimes, Grimes & Washington, C., Wynne Wynne N. McKenzie, William A. & Anugus Wynne, G. Dallas, respondent. all of response petitioner’s In proposition Zapp, Coleman cited v. Texas, 491, 1040; 105 425; Epperson Jones, 151 S.W. v. 65 Texas Wilson, Wilson v. 226; 145 Texas 2d Davis S.W. v. Pierce, 250 S. W. 2d 656. opinion delivered the Mr. Justice of the Court. Griffin Respondent Betty Long, Knox, Knox only child of W. C. deceased, joined by husband, capacity, her in her individual and as Knox, administratrix deceased, the estate C. of W. Gregg County, District Court
recovered Knox, against Knox, Texas, Harryett the widow of W. C. H. Harryett H. petitioners, who are the children other and the alleged respondent marriage. Generally, by a former Knox Harryett H. was by petitioner property all of owned Har- belonging father and community respondent’s property Harryett, for the com- ryett, in trust held in name of but proрerties, munity for certain described estate. She also sued Harryett, legal was in the children title to which alleged for the held in trust respondent children which Harryett. Further facts community of her father estate various disposing contentions of the be stated in will affirmed parties in The trial court’s was this court. granted Appeals, 2d we the Court of S.W. Civil writ of error. jurisdiction of the trial point
Petitioners’ first attacks the case had herein this been to render the because previous at to the one trial court at a term dismissed rendered. It is contended which reinstating docket, upon the this case action of the trial court subsequent setting term without at a and in aside dismissal Judge having filed, was null and void. of review bill been during early history Roberts, Earl was the whо litigation resigned Fred Erisman and Honorable his office Judge May appointed 1950. to succeed Roberts about upon the in the District Clerk’s office An order was drawn *4 signed Judge court, by Eris- of the and this order was minutes August 8, This was blanket under 1950. order man date upon parties prosecute” failure of the order of “dismissal for cases, giving motion, numbers it listed 181 own and the court’s styles list and 146th on the was and of each case Knox, “20,688-B Betty Long, Harryett et et v. H. al”. al Erisman, signed by H. This Judge”, at the end thereof “Fred order was August 8, 1950. That term of court etc. and dated September 2, September 15, ended 1950. 1950 the court’s On the fact cause was included in attention was called to that this by August 8, dismissed the order of 1950 as one of the cases upon motion, immediately, own entered order. his reciting correcting August 8, 1950, an order order that was of dismissal cause in order inclusion of this the blanket through inadvertently of the mistake in the office done court, knowledge Clerk, or direction District without although “the dismissed and was included this list causes having specifically at directed the District Clerk court that time
295 being dismissed, in- to omit from the such case list cases a mere clerical error clusion of such case within such list was September and was not the order of the Court.” On or hearing 29, 1950, had, parties after notice to reinstating upon cause the docket entered another order court, striking included in the this cause from the list reciting August 8, 1950, mistake and facts as order agreed parties above. All if the inclusion of are August 8, order 1950 was a clerical mis- of dismissal of here, take, as done such mistake could be corrected mistake, judicial if could its inclusion was the order here, be set aside but a of review would have done bill filed proceeding to be and acted on. We no bill review before us. al, 491, Zapp,
In the case of Coleman v. et 105 Texas 1040, 1041, Supreme Court, speaking through S.W. Chief Phillips, power Justice held that a court has inherent entry by pro properly correct nunc tunc so as to judgment, recite the effect of the court’s and said: “The pronounces. of a court is what the court Its judicial by rendition is the act which the court settles de- clares decision entry of law the matters at issue. Its by enduring ais ministerial judicial act which an evidеnce of the act is afforded. entry
“The correctly fully failure of the minute or recite judicially what the court determines does not annul the act of court, which remains the of the court notwith- * * * standing imperfect its record. “Hence it power from the earliest times the correct- ing amending records, by pro entry, their nunc tunc so as faithfully action, possessed recite their has been and exer- right, independent cised statute, an courts as inherent express provision, absence of unaffected limitation.” Hodges, See also v. 517, 529; Chambers 3 Texas Trammell Trammell, Supp. 261;
v. Texas Judgments, Tex. Jur. 57; Wilson, Sec. v. Nevitt 116 Texas 285 S.W. 48 A. L. 355; McDonald, R. Practice, p. Texas Civil Vol. Sec. *5 17.08; Rules 316 and Vernon’s Texas Rules of Civil Pro- cedure.
The record established that the stack of 182 docket sheets judge’s were left They on the stamped desk. had by them That entry prosecution”. for want of “Dismissed clerk the signed docket sheets without of orders on the judge would determining should and that all such cases in advance by testimony “At follows: made clear his dismissed is be looking through sheets, I time, the docket started without signed through thumbing up sitting I them until had there sign days them group It two three them. took or a whole of signed intermittently.” further they just He testified were any were inquired clerk cases if that he thereafter proceed- point in At this and should not dismissed. active ings be judgment may safely of the said that no think it be we ap- any yet 182 cases for in had rendered court been although had been pears beyond dispute docket entries judge in signed provisional and the was still the entries were any permitting no intention of all of them with control judgments until first satisfied of the court he them to become cases were active. that none of the himself through inquiry response judge’s clerk looked In to the fact that the called his attention to the Green files and active, whereupon “those two cases were and this case were both not to be dismissed”. taken out the stack and were laid aside to the clerk’s all 182 docket were delivered Thereafter sheets proceedings point we think two office. At these things certainty: (1) judgment had been were established with dismissing cases; (2) been rendered had not dismissing this case. These conclu rendered the Green cаse or support sions find facts and in the law. both Judgments, Ed., pp. In Freeman 5th Vol. Sec. -judgment pro- it is that “the rendition of is the said by upon the court conclusions and decision nouncement of its “may adjudication” the matter to it for which be submitted “ written,” oral as well as ‘rendered’ officially orally open when the either decision is announced by memorandum with the clerk.” cases One of the filed Appeal Bulkeley, support cited the text is the case of 112, 113, 76 Conn. 57 Atl. in which it is said: “A officially announces is in fact rendered whenever trial court, signifies clerk, open decision or out of court to the orally capacity guidance his official and for his official —whether pronounced or written memorandum —the sentence of thе law pronouncement him in in- cause. This court it is writing cumbent the clerk to forthwith enter. The out judgment file, in the form of a recorded *6 * * * recog- is subsequent a action. Here clerical is matter of judgment only and the the a clear distinction not between nized it, writing required made to evidence but also which is be preparation judgment and between the rendition the the writing subsequent time.” this at some appears judge it
Thus that when the satisfied himself that withholding judgment there was no further reason for signed 180 cases and delivered the written memoranda of dis- in missal clerk cases the for such further clerical action necessary as was to the recordation thereof he had rendered judgment just effectively such cases as as if he had made an pronouncement oral separately dismissal in eafch case open hand, judge pulled court. On the other when the the docket of the sheets Green case and this case out stack and laid them aside “not to dismissed” before the delivered stack was clerk, possibility he delivery the terminated the that the the sheets in those two cases would constitute the rendition of judgment effectively just therein as if he had run a line through the entries on such sheets. opinion It our testimony the circumstances clearly support signed
evidence a conclusion the instrument judge, clerk, was never intended any else, or the or one fact, be, judgment and it was a rendition of as to contrary, or other clearly sup case. On thе such evidence ports the conclusion that the instrument was intended to be judgment formal draft of the theretofore ren dered, a memorial record of what theretofore had been done signed when 180 docket sheet notations were and delivered clerk, mistake, clerk, by into which the inserted num style entry ber of this case. This clerical error judicial of a rather than a error in the rendition of agreed the authorities in this state are subject that such an error is to correction even after the end supra; Zapp, of the term on motion and mere notice. Coleman v. Rules 316 and Vernon’s of Civil Procedure. Texas Rules plainly distinguishable This case is from case Love Antonio, v. State Bank & Trust Co. San 126 Texas signed preрared S.W. 2d 819. In the Love case the order was not signed as evidence of a theretofore rendered in contrary, opinion another case as was the order here. On the signed by in the Love recites order there the trial case, prepared particular court was for that ren- judgment dismissing signed dered cause. When judge judicial constituted both the act of and evi- dismissal case, hand, dence that act. In other *7 of dismissal which the formal order intended to evidence was not did involve this case at all. The trial testified “it was case; my not present intention to dismiss the case nor the Green knowledge pending both which I actively had was on the * * * docket. I meant to order leave them on docket.” The the hearing in- which reinstated the after “that the cause recites clusion of of dismissal entered this suit in the blanket order * ** August 8, erroneously inclusion 1950 included the was erroneous, style a clerical mis- <ofsuch case number was court and decree or order of the misrecital within take dismissed, now cor- and should be intended to be never was the the order entered was Love case In the rected.” at the order pronounced, whereas bar court had actually pro- exact reverse was entered clearly entry a clerical In case the was court. this nounced mistake. urge points fourth, third, and sixth error fifth Petitioners’ holding Harryett H. Knox in the trial court the action of
to give deposition, good her oral failure to causе for not show did Harry denying trial in to subsequent action of the and the right the trial present her defenses to H. Knox the ett case. June, 1947, shows that the record was filed in suit After separate no- beginning September, there were twelve to take the request for a commission oral of intention and tices testi- Harryett Knox, procure her in order to deposition of H. respondents 18, 1949, addition, March mony in cause. In discovery for asking and order pleading for bill filed examination. appear court and submit to Harryett H. to Knox presiding judge Roberts, Judge then petition, Upon Earl hearing pending, after a was the court wherein this commanding present, entered an order counsel defendants’ with Longview, April at appear him before Mrs. Knox tо bring certain m., to examination a. to submit at 10:00 attorneys May, her. In with instruments written Knox, application commisison to take answer to an Mrs. April, 1949, instru- deposition filed an Knox’s oral filed Mrs. Texas, Dallas, pointing where application out ment taken, deposition was to be was more Mrs. Knox’s oral stated litigation Longview, pend- 100 miles from where than ing, deposition petitioners demanded Mrs. and the interrogatories provided by Rules to be taken on written “as referring 201). re- Procedure”, (evidently to Rule In Civil sponse respondents motion for the court to this filed a deposition enter taken an order for Mrs. Knox’s oral application Dallas, Texas, during May 23, week 1949. This subpoena regularly recites that notice and been served on happened, just Mrs. Knox. The record is not what clear as to except did that Mrs. Knox as commanded. The cause appealed Appeals during pendency of Civil the Court appeal nothing regard taking further was done in her deposition.
Beginning August, attempts were resumed to take deposition, Mrs. Knox’s without On success. October 1950, upon application respondents written wherein the vari- *8 attempts out, ous theretofore made were set and the unsuccess- being out, ful results also set Honorable Fred Erisman entered order, hearing, after reciting notice and this is “plaintiffs character of case where are entitled to have oral deposition Harryett of Knox,” H. to jus- best serve the ends of tice and hasten triаl of pending this cause which then had been years, permitting more respondents than three and to take Mrs. deposition County, Texas, Knox’s oral in Dallas where she was residing. Upon notice, then taking due the date of deposi- her 14, 1950; tion was set as January 5, 1951; December February 5, 1951; 10, February 24, 1951 and March 1951. A commission duly taking January 5, 1951, issued on the and re- by notary turned unexecuted because Mrs. Knox did not appear, attorney, nor did her attorney telegram sent attorney Mrs. Knox’s doctor advised said she was unable appear on January 29, to of account illness. On respon- petition discovery, dents filed another for a bill of which was hearing Judge February 5, set for Erisman on 1951 at 10:00 application m. Mrs. Knox filed an a. answer to this in which jurisdiction any order; she attacked the of court to enter portion depriving of party attacked Rule 202 relative to appear, to his defense for failure as violative of Section I of Article Texas Constitution and the fifth four- and Constitution; alleging the United teenth amendments of States good give appearing deposition for not to her she had long prior (date taking depo- thereto “for a time because ill, appear give sitions) she and is too ill was too still to and deposition” attached a certificates her and doctor’s to such effect. February 5, court, hearing, parties after On being represented by counsel, appear their ordered Mrs. to Gregg February in the County, Texas, district court room оrdinary trials, 1951 at 9:00 a.m. and for examination as in produce hearing further ordered her to for such certain docu- ments, and copy directed that a Mrs. of his order mailed to be address, Knox at copies attorneys. her Dallas mailed to her appear. appear- never She did The excuse offered her for not ing was that she appear. was ill and unable to Notices of all proceedings record, attorney these were served on her her, efforts were made to serve and there was evidence evading finding record to sustain the trial that she was court’s refusing appear deposition service and taken. her be setting respondents 13, 1951, out On filed a motion March give deposition apрear her Mrs. Knox to the failure examination, appear for obey court to orders of the present her permitted to defenses or her that she “not be asked court, 1951 the after law On March in this suit.” claim ap- her to hearing present, entered its order for counsel with Longview, Texas, March at the court pear before appear m., “and her failure or refusal before a. at 9:00 give under deposition, be in default she shall the court of Texas Procedure of the State Rules of Civil 202 Rule governing civil cases in this trial of the rules and under thereupon deprived in cause of the this court, she shall ground in this cause.” defense or relief her right present, the trial and insisted that motion Knox answered Mrs. order her to because jurisdiction to had no reinstated; *9 legally and not dismissed had been order; sought justify authority and to to issue no court had previous orders of the appear in obedience to to refusal her she was ordered (1) ill at the times had been she because court authority power or (2) never had the the court appear and to deposition, give and all such appear and her to her order to appear void; (3) ill to that she is too and null and were orders 24, by March court. On on March as ordered 24 present, being attorneys parties hearing, for court, a after finding refused without Mrs. Knox “has its order entered obey give depositions, the orders her to appear and to cause govern- Procedure Rules of Civil court, appear under the to judgments of this and flouted the orders ing discovery, has and right Knox the order denied Mrs. the same court in The court.” cause” grounds or her defenses in this relief present for “to her day At- proceed trial on the set. to to and ordered 24, 1951, aside motion of March to set Knox’s Mrs. to tached
301 directing 19, 1951, the court’s order of March Mrs. Knox to right appear, her, away or have her to defend from taken were One, physicians. psychiatrist, affidavits of two a states in his suffering praecox, affidavit that Mrs. Knox dementia is from long duration, mental illness of and that she considered was mentally incompetent wholly testimony and that her would be incompetent appearance require and her unreliable very injurious court would be her health. The doctor other family physician, Mrs. was Knox’s and he too stated she did capacity testify, physical have the mental and that her might bad, testify condition was to cause her to physical Upon hearing cause mental and breakdown. be- court, doctor, fore the a local who had made no examination of Knox, that, nothing either, opinion, Mrs. testified in his stated in both, prevent the above affidavits was sufficient Mrs. appearing testifying. hearing Knox from 24, 1951, March After the overruled the motion to vacate the 28, 1951, of March 1951. On March this cause came on days. judg- April 21, trial and was on trial for three On by against Harryett ment was rendered default H. Knox an properties, undivided one-half interest in and to certain against (Mrs. party W. C. Holcomb son and a defendant Knox’s petitioners) jury and one of the certain answers court, issues submitted for an undivided one-half interest residence, in the Dallas record title to which stood name Holcomb; money judgment interest W. C. also for one-half in certain oil runs and leasehold interests. Petitioners filed mo- hearing tion for new trial and was had on the action of court’s defenses, 1951, depriving March her and on Mrs. condition, physical Mrs. motion Knox’s mental and the overruled. Procedure,
Under Rule Vernon’s Texas Rules of Civil right requiring court had Knox to to enter an order Mrs. give though deposition, her oral resided more than 100 even she pending. miles distant from the court where the suit provides before last clausе that rule that “the or court right, upon proper pending” whom said suit shall have notice, application, depositions other- after to direct to be taken interrogatories. Ex wise and written than commission Stiles, Parte 2d 234. This the court did Texas S.W. *10 separate on two occasions. or more and distinct 202, Procedure, provides Rule Vernon’s Texas Rules Civil taking witness, provides depositions and further for oral of a
302
a party
appear
to
suit and
where the witness is
fails to
“except
appearance,
good
subpoena
for
for his
in answer to the
shown”,
present
party
permitted shall not
his
be
grounds
provides
relief or his defenses. The rule further
for
county
deposition
residence
must be taken
by
rule has not been construed
this court
This
of the witness.
However,
similar
passage.
the Federal courts have
its
since
Procedure,
37, Federal
28
Rules Civil
U. S.
Rules 33 and
rules.
Rule 37
been construed as
provisions of Federal
TheA.C.
refusing
party
who would
of court
to allow
valid, and orders
designated
support
give
deposition,
his
his
answer and
not
introducing testimony, have
prohibiting him from
defenses
Cleaning
Martino,
Michigan
6th
upheld.
Co. v.
Window
been
;
Lloyds
(1-4) Fisher v. Underwriters
at
Cir.,
F. 2d 466
173
Cir.,
(5).
London,
al,
A
dismiss-
In addition to the providing provisions. Our Rule after the states have similar taking continues deposition witness procedure the oral
303 * * “* regard party litigation, provided to to with a party a to the witness is the suit with an attorney where subpoena record, may service of the such case be made attorney representing witness, and if the witness fails subpoena, except appear good to the in answer to for cause shown, party permitted present grounds not be shall to his statutes, relief or Under his defensеs.” similar rules, may judgment against held trial been that the court a has a enter plaintiff a plaintiff’s disobedient dismissal or nonsuit of action; as to a disobedient defendant it is held that the cau.se may pleadings, court strike his but that a default can- express in the absence of an not be entered statute or rule so authorizing, 388, 144 Annotation A. L. R. where the sub- thoroughly Clearly ject is discussed. our rule would allow plaintiff’s to dismiss disobedient court suit. Should a different applied a disobedient rule to defendant? think We not. Both parties should be treated alike. In the case a disobedient de- where fendant answer on merits of has been strick- may en, taken, plaintiff default not be but the must discharge showing right recovery. his burden Defen- present plaintiff’s counsel can be dant’s cross-examine wit- plaintiff so recovery. as to show that is not nesses entitled Supply Co., Republic App., v. Texas Snowden Civ. 239 S.W. 2d refused, writ For the n.r.e. error of trial court in ren- dering judgment against by default, Mrs. Knox this cause will to be reversed and remanded. Upon cause, the retrial of this Mrs. Knox should be afforded opportunity give deposition her and be examined plaintiff. If continue her give she should refusal deposition, may, hearing, good her court after the by unless refusal, again prevent is Knox for shown Mrs. her her offering any Lord, Cir., defenses. Fisher 7th from v. 125 F. 2d 117; Webber, D.C., 11 Fed. Socha v. Dec. 124. Rules eighth complain points
Petitioners’ and ninth of the action giving judgment respondents the trial favor assignments an interest and lot in house Dallas. These property must be sustained. The deed to the was made to W. C. Harryett request Holcomb at the W. Knox and H. C. Knox. Long deed contractual consideration. Mrs. recites a stands father, Knox; therefore, parol privity with her C. evidence W. property the title to the Dallas is admissible show Young, v. different from shown in the deed. Kidd 144 322, 190 65; Nye Bradford, 144 2d v. 193 Texas S.W. Texas 304 Goldberg 1; Zellner, Com. 2d 169 A. L. R. v. Texas
S.W. Russell, 870; App., Russell v. Texas S.W. S.W. allegations fraud, accident or mistake 2d 793. There are no regard recitals in deed. to the execution or As to with *12 personal property Dallas and other the house furniture alleged community property Knox, of if be Mr. and Mrs. the trial, Long en- on another would be is the same evidence Mrs. property community interest in this to recover whatever titled Knox, father, owned at time can her W. C. the that she show again, on for trial In event this comes his death. the of right her denied her defense of Mrs. Knox to make because with plead give deposition, she could appear and her failure to Long’s urge as a bar to Mrs. the statute of limitations claims, evidence is an affirmative defense. There was for this finding community justify jury that of Mr. funds that would paid certain indebtedness and on the Knox off taxes Mrs. payments by property, were made virtue these Dallas agreement C. and Mr. and Mrs. an between W. Holcomb properly jury the were submitted to Knox. These matters Long facts. Mrs. is entitled recover determination of the their community money expended by all for one-half of sums property, paymеnt and taxes this of W. C. Holcomb’s debts by competent subject may proof, to establish which she able legal may C. which will which Holcomb have defenses W. her claims. defeat assignments error, additional have most Petitioners admitting complain of action of the trial court
which rulings documentary and oral evidence. of the trial These development cause, virtue of the the trial arose unfolding therein, and another trial circumstances under the likely different; therefore, refrain most will be we situation assignments. discussing apply The trial court can from these well rules of to each known and established evidence well assignments All other particular situation as arises.. petitioners’ are' overruled. courts judgments below arе reversed and of both trial court for a retrial consistent with
cause is remanded to the opinion herein. our April 8, 1953.
Opinion delivered , .Smedley dissenting. Justices Associate Garwood dissenting. Garwood,
Mr. Justice agree to the reached the court extent I with the result my But, opinion, we judgments below are reversed. dissenting opinion of position should sustained Judge stricken the cause Lincoln have thus ordered below respondent, court, relegating our from the docket of the trial rights Long, Betty Our con- to her under bill of review. adage holding yet trary old another instance seems actually our de- “hard had law.” We overrule own cases make Co., cision in Love Bank & Trust Texas v. State it; and, though purporting uphold 2d. S. while W. diligence good veracity, judge faith conscientious of the trial holding doubted, in the instant subjects henceforward case cannot be our un- clear and reliable court records to erstwhile signed meaning only hazard of what who desirable them to have his intent at time. later recalls been *13 signed duly entry
Here we a docket that the case was August 8th., change any dismissed on without written thereof expiration until a later over month and after the term of signed by judge court. a We also have formal decree the as of August entry. 8th. to the same effect as the docket All is naught upon subsequent judge held for the recollection of the signature that did he not intend to what do his own thus twice substantially contemporaneous attests that he did do what no suggests written recоrd of kind he that did do. treat not We judicial manner, a solemn document in a which in the case ordinary conveyance, an deed of would be deemed violence. particular disposition inWhile cases a not there is unnatural go holding unpleasant in to far party order to avoid a to con- sequences indulgence oversight, yet of a blameless just is what case, supra, we refused to allow ourselves in the Love appears which no judge one to criticize. There the dismissed strength evidently Mr. Love’s suit the of misinformation from clerk the the to effect that the one. suit was an inactive apparently He was conscious the name and number of the equally identifying case important but unconscious of the fact doubly it was an active case. doubt No the error there was in prepared “clerical” the clerk sense that the also the dismis- decree, sal but decree the and the error it embodied were held judicial act, subject to be a to correction after the term only. bill review The was held not to a decree be mere errone- entry, ous previous judgment reason no rendition case, had made been in the and the decree was thus both ren- a entry, possible. dition concededly and an which is test rendition, judgment distin- a as. is is not a written whether entry, actual mere there an guished from a was held be—“was not, previously If the written is. the made?” rendition rendition, entry. as well as litiga- say although party no to the would now
This cоurt — of what is a rendition is contended —that the test has tion so decision, judge Love recol- applied but what not that merely entry a an “meant” rendition or whether he about lects might —although admittedly only previous rendition which (or cases) a case with a different name different exist if, case, judge had in the but read instant Now number. August signed 8th. and forthwith decree aloud deny rendered and entered it, that he then would few dismissing theretofore instant case. The fact he had entered, rendered, other cases included but material, because, as not be deemed would the same decree case, pronouncement we would have an oral instant entry. aby not con- written one or We would judgment followed judge not to render intention of sider obviously it, render he case, he did whether meant because there no substantial difference between such Yet is or not. Surely presumed us. is and that before situation grantor signs, just presumed he is what know content deed, signing of his so that his of it is know the content signed spoke he first it and then it. In the latter in- as if same misapprehension less, chance of is doubtless stance the removed, wholly judge’s from “consciousness” because far enough indentity particular depends of a often *14 something may it name number. about other than the and He thinking a speak the latter and still be different read or case suggest judge altogether. (Indeed, proof that the does the August signing it, 8th before read his decree did not but dismissing merely that had “no conscious intention of he thereby. Certainly he was particular case” conscious that many every dismissal of decree listed cases stated the one writing listed). The mere fact that the decree a so writings, obviously does decree entries are not mean that the presumptively only entry previous is an rendition. some Cer- nothing tainly impossible, improbable, is a there or even about rendering cases, judge an oral at one moment dismissal of 180 another, concluding yet his mind to and still later in dismiss entry signing decree, an which but as the 180 cases later is entry us, yet as to a rendition and the 181st. Let for ex- both ample, hypothesis further in the instant case we take including covering cases, had, the instant not one decree only including pertaining case, decrees, separate one but 181 say then that the Love case to the instant Would the court case. dismissing separate apply say did not ? we that the decree Would entry an of dismissals there- the instant case was but erroneous cases, that, tofore in the instant rendered other as to case, dismiss, purported had effect at all? I which it it no greatly clearly we there no substantial doubt that would. Yet is difference between two It hard me to situations. is see decree, only how a thereby correctly A which contains one reference to case A, prior rendition in
enters the made case yet be, is, says entry can the court an as it erroneous provision identical rendition. The inclusion the decree of regarding may oversight, case B been an have would not which happened except judge’s entry for the intent an to write concerning A, entry case but it not an still is A, erroneous of a judgment concerning correctly case because it reflects that judgment. entry It is not a B mere case there because prior no rendition to enter in a B. case So the reference B. to case is entry simply either combined rendition and in case B it is nothing though clearly at purports judgment it to be all— signed by B judge, just and is inas the Love case. stated,
As holding before result of the court’s in this suit is judgment that an may always erstwhile written rendition of impeached by recalling be later that he never had particular really casе mind meant to enter already oral, rendered some If other case. the rendition were course, otherwise, it would be because an oral can- entry only not be said to an so can be considered the ren- holding brings dition that peculiar is. therefore about the decree, situation that a written which is the most solemn and rendering judgment, actually heretofore most reliable form of pronouncement. less an reliable than oral may -question premise major also on the One evidence judge, prior decree, actually of the court —that the trial dismisirig cases, excluding rendered the instant testimony discloses, only case. So far as the words used that entries, appropriate were the docket wеre stated, exactly before these were the same on corre- sheet sponding others, to the instant case as without writ- *15 they ten indication until over a month later that were to be suggest differently. considered The evidence does that the formal order or decree above discussed was not executed until some very period but brief after the docket entries
undetermined signed corresponding all and after the sheets were two separated from the instant case the “Green case” were judge’s up picked desk and on the all of the sheets others taken off the clerk. But the does not disclose evidence signed begins actually (it which decree was date on “On transcript day August” copy 8th and the bears this the both it was “entered” and “recorded” the notation suggests date). uncertainty exactly evidence when or The August got and does 8th on the docket entries how date segregated on which docket sheets were not state the date confusing away. taken Out on the desk and evidence very a all occurred within which to have circumstances time, (a) period type to reconstruct an oral us brief except dismissing all of the cases rendition of consisting subsequent entry formal (b) of the one and a instant decree, appears quite judge not asked to me artificial. only judgment, meant to render about when he rendered or particular intended to render a whether he ever future, I precedent сase. Mindful that our decision is way is to resolve such situation think the more safe sensible look, real recollection about not to the later separating single act of intentions and to the and inconclusive desk, purportedly made papers on a but to written records approprite form time, purport to reflect in at the which alone many words dismissal in so an act and manifest including concerned, instant August 8th of the causes words, the conclusion we should conclude—and In other suit. only clearly anything opposed by evidence —that signing written performed was the act of ever brings course, August conclusion, decree of 8th. Such should decision, even if the latter squarely within the Love apply. not otherwise May 6,
Opinion delivered 1953.