Lone Star Cement Corporation v. Fair
467 S.W.2d 402
Tex.
1971
Check Treatment

*1 CORPORATION, LONE STAR CEMENT Relator, FAIR, al.,

J. Roll District et Respondents.

No. B-2433.

Supreme Court of Texas.

May 5, 1971.

Rehearing Denied

4Q3 April 20, 1966, On relator, plaintiff, filed suit in the 101st District on a Court sworn account naming as Lon- defendants Rush, nie R. individually, and W. Rush-Chant, Inc. On d/b/a 1966, Chant filed a plea privilege plaintiff presented the trial with a court motion for non-suit which was thereafter granted May on At 24, 1966, 9:30 on May A.M. which was Tuesday following expiration twenty days citation, plaintiff service of presented the trial with a for motion however, a default it was not acted on at that time. At P.M. the 2:30 day same his Rush filed answer 1, 1966, filed plaintiff cause. a On June “Motion to Set Aside Answer” and 10, 1966, Judge Blankenship rendered Rush, a against default B. W. Rush-Chant, Inc. d/b/a July 12, thirty-two days after On the rendition of the Rush filed Eight days motion later for trial. new plaintiff to strike filed a motion defend- for ant’s new trial. The motion action taken the court discloses no Hartnett, Davidson, Curry & Neil motions. these Davidson, for relator. Irving, than July four more On Price, Kelton, Strasburger, & Martin attempt to de- years three after his last Harrison, Brin, Unis, Royal Curtis & H. claim, filed for feat relator’s Dallas, Walters, Lub- Cooper, & Garner entry tunc. bock, respondents. Blankenship requested Judge in the default change recitation FOR PETITION ORIGINAL to reflect a written MANDAMUS OF WRIT stricken and ordered by Rush been filed untimely prior to DENTON, Justice. replied and Relator hearing on Blankenship held a Judge proceeding this direct this Court 1969, motion motion. On October against relator seeks a writ mandamus granted. Fair, Judge Roll the 101st Honorable J. County Dallas District Court of Judicial amended signed the Blankenship Dal- alternatively, Honorable following omitted Blankenship, Presiding Judge las A. appeared words District. B. W. 1st Administrative Judicial 10, 1966: The writ respondent. Rush is also made legally duly and though “Defendant pro tunc to set aside sought things com- in all and service cited by Judge judgment rendered here- appear and plete, failed 101st District serving judge of the while in, Court. Substituted for the above fol- were the motion for non-suit was a dismissal lowing : entire cause of action and consequently all subsequent proceedings were void. Lone having “Defendant and legally Corp. Rush, Star Tex.Civ.App., Cement having served and filed a An- Written On swer herein on May but said *3 Court, refused grant we to a writ of error having

Answer been set aside n with the notation reversible error.” “no Court on motion the Plaintiff of because timely said Answer was not filed and the Pending rehearing relator’s motion default, being Defendant petition granted leave file this for a to of of the writ mandamus on the On Rush November filed an nunc “Amended Motion for Trial on New Order granting Entry of Defendant’s Motion for The Order

Judgment Pro Tunc.” Dismissal Nunc Four granted Judge Blankenship later the mo- It did is our view the of non-suit order tion for new trial. Subsequent not dismiss the entire cause. filing plea priv- to. of R. Chant’s Lonnie appeal Relator’s to the Dallas Court ilege, presented the court with relator Appeals That court Civil was dismissed. following order: opinion granting of of the entire purports to dismiss signed the the order an dated ambiguous cause, is an This however. The Docket Sheet May order on may Generally, ambiguous order an suit takes non order. entry reads: Plf. “5/16/66 upon motion light be construed Beneath Chant’s R. vs Chant.” Lonnie handwriting is granted this record con- apparently name in different it was “only.” the word to dismiss tains no written must, therefore, fol-

party or cause. We alone, cap same The considered When rules construction. low other construing only one apply supports interpretation tion the contention rules party body The order meaning dismissed. ascertaining meaning especially as in other respondents, it as a dis- treated only. Permian Oil v. Co. missal as instruments. Relator subse- Smith, (1937). quently 107 S.W.2d for default moved

answered, the trial court rendered The entire of the in contents ment and Rush moved for a new trial. strument and record should be considered. years Three later Rush his ef- resumed read as a to be whole. judgment seeking forts defeat the Co., McCoy Light Texas Power & pro tunc to correct error” “clerical (Tex.Com.App.1922, jdgmt S.W. therein. All events sub- these occurred ; adopted) Starley, State sequent the dismissal (Tex.Civ.App. Corpus 1967, no Christi 1966, yet respondent’s amended not until — Horn, writ); Moore 359 S.W.2d 947 for new trial *4 1962, (Tex.Civ.App. writ ref’d judgment tunc does reveal the record —Beaumont e.). body n. The order has no r. of this that the action contention cause of party parties reference affected was to hold that as dismissed Rush. We by in non-suit. Its effect should be the the as a order and record considered terpreted the with reference to entire parties whole as the well conduct of the as order, caption may looked and the be to subsequent and trial the order court to parties ascertain the order and contrary dictate a to that construction whom the was rendered. Appeals. the Court The dismissal of Civil Chenault, (1878); 455 Smith only. was effective to Lonnie R. 57, Robbins, Hodges Tex.Civ.App. 23 1900, ref’d). (Houston 565 writ 56 S.W. Tunc Judgment The Nunc Pro Although the record contains no motion state The law is in this order, settled preceding dismiss the it does reflect judg entry in the of a clerical errors plea of that Lonnie Chant alone filed a R. rendered, ment, previously may be cor taken was the privilege. The next action the term rected end of court’s order, after the entry presumably of the dismissal however, ju privilege. response plea of to Chant’s previously rendered dicial in the style caption The de the judgment may not be Comet corrected. plaintiff’s the fault well as Dibrell, 56 Aluminum Co. v. S.W.2d therefor, as follows: read ; Finlay v. 435 S.W. (Tex.Sup.1970) Jones, Long, 152 (Tex.Sup.1968); 2d 136. Knox v. LONE STAR CEMENT CORPORA- 316, 291, (1953); Rule TION Procedure. Whether Texas of Civil Rules vs. judicial judgment are prior in the the errors INDIVIDUALLY, W. RUSH Finlay v. of law. or clerical is RUSH-CHANT, INC. d/b/a supra. All filed instruments were position grant- Respondents the the take captioned style. the identical A rule to strike Rush’s ing of the applicable of construction to contracts and error, of that the omission judicial but was other like instruments directs courts judgment of original from the action June placed on follow a reasonable construction argu- The error. a clerical 1966 was” parties the instrument the involved. did pro tunc here may applied This rule also to orders be did it in that the not correct Estate, Supples’ In re courts. decided, previously anything change not 1939, no Antonio (Tex.Civ.App. —San of what the omission simply supplied but writ.) its rendered when it decided the court Respondent’s 1966. judgment on Although poorly here was the order June pro tunc effect cause, drawn, position is to parties all involved thing about the contained the recitations June he knew on He made 1969. rulings reflected the correct 10, mistaken determination that answer was no actually rendered the court on June on file. In Finlay an answer was in fact Here, filed, but misplaced. an answer was original The of June filed, in fact stricken. recitation; included one erroneous to wit: was cause mistake while appear the defendant failed to and answer. judicial. However, here it was the cause also omitted a recitation The controlling. error is not answer had been set aside at After Rush’s answer was Jones stricken, plaintiff, on motion of the record, legally and effective- making effect of defendant default. ly, answer. There no contained no served, defendant had answer, rendered the fact an had been before the ren- accordance with was in judgment of 1966 was Finlay, Judge Blanken- inas dition. Just brought the attention of court. determined, er- judicially however ship plaintiff’s This is evidenced roneously, defendant was default. and a to strike the answer notation on such setting hearing court’s docket the determination We hold at motion for 9:00 A.M. Ob- “fail judgment that the defendant original *5 viously, that the defendant the recitation herein,” awas appear and answer ed to was appear and answer herein” “failed Therefore, pro the judicial error. erroneous, of a de- the rendition as was 23, pur judgment of 1969 October tunc judgment. fault recitations the erroneous porting correct void; was the and omissions in We think this Court’s decision 17, respondent the granting 1969 November (Tex.Sup.1969), 136 is likewise void. a new trial directly case. point in and this is decisive of the de- trial court rendered the respondent directing of mandamus Writ that de- determining after fault Blankenship his succes- or Dallas failed duly and had fendant had cited been Fair, the nunc to set Roll aside Judge' sor had to answer in fact defendant when 23, 1969 of October tunc the cause. proper cited but not in been 17, grant- 1969 the order of November and However, cause proper in he answered the only issue trial will the motion for new ing in misplaced but had been the answer them aside to set of them decline if both rec- held that erroneous another case. We voluntarily. ef- to the itations the default that fect the defendant had CALVERT, (dissenting). Chief Justice citation, ap- but had served with neither answer, judicial nor peared filed an were the from Being thoroughly convinced such, they not As and clerical errors. sought to the error us that record before end of the not after the a could be corrected was by Judge be corrected final, error, I must judicial term at a became clerical and not the a the error was If respectfully dissent. is, thirty expiration the after clerical the the original from date on which subsequent or- the 23, and 1969 operation for new overruled valid, the der, and trial are granting a new of law. be should mandamus prayer for writ of the default Here denied. granting motion to strike the wheth- Judge Blankenship precise answer. a com before us is plete every- record him draft finding before knew contained the er the and judge signed the judgment entered1 in the court’s minutes written memorandum clerk, know that appear and and filed the defendant “failed with usually memorandum herein” is a correct record of rendition and then finding actually only jury trials to a made the court occurs not pronouncement is only it is an when an rendering judgment or whether oral stating, expressly If it is a correct incorrect record thereof. made. Without made, draft of finding actually record there treat the written majority of the 1966, 10, judge signed judicial was a error in rendition inasmuch ment of June constituting clerk, conclusively as the record shows and assump- If this judge defendant had and that the answered a rendition it; correct, majority’s knew if it is an incorrect conclusion but tion were failure actually made, finding finding error is that the erroneous appear answer is judgment’s entry the defendant to and correct; difference, illustrating correctable. As also be error would assumption see are is not correct. for clerical correct- able, Long, 291, 152 Tex. Knox v. 257 S.W. on hearing The trial court conducted Zapp, (1953) 2d 289 Coleman v. 7, orders to determine what August and for (1912), S.W. 1040 on had beeen rendered judgments uncorrectable, judicial errors which are hear- 1966. At the conclusion Co., Love v. Bank & 126 Tex. State Trust court, heard the evidence ing, “having (1936) Missouri counsel,” “that found arguments and the Ry. Haynes, Pac. Co. v. defendant, W. in truth fact (1891). S.W. 605 As Coleman v. said herein a written answer Rush, filed Zapp, Railway and Missouri Pac. Court, Haynes Co. v. Plaintiff, set aside motion of

“ said Rush because answer of B. W. * * * well illustrate the distinction *6 ren- filed, timely was not clearly which lies defined between suit against B. W. Judgment Default dered judgment correct a because of a mis- quoted Having made rendition, whereby of the court in its take proceeded to render findings, the court improper judgment an its is rendered but in the judgment nunc described in is accordance with the rendi- majority opinion. tion, sup- proceeding and a to corrct or ply the minutes of the court as to have find- quoted so emphasize I that the court’s truly actually them recite the heard judgment only “having ings were made rendered.” authorized The court was the evidence.” findings from oral evidence to make the The rule and followed announced v. The State his own recollection. foregoing applicable is just cases as Kluck Womack, (1856); by findings efforts to correct made a court (Tex.Civ.App.— Spitzer, 54 v. S.W.2d judgment in the rendition of efforts the absence of writ). no In Waco part to correct the decretal finding heard, the record the evidence judgment. Rule Texas Rules of verity. em- I also is to absolute entitled Procedure; Finlay Jones, 435 Civil v. that on motion phasize that the court found (Tex.Sup.1969). S.W.2d 136 aside the plaintiff the court set rendered” Although in Knox answer of Rush and recognized we v. “thereafter findings can These Long, supra, and in Comet Aluminum Co. pro- Dibrell, only judge made oral mean (Tex.Sup.1970), v. 10, 1966, first, judgment may that a be rendered either nouncements aside, and was set of Rush pronouncement oral from the bench or throughout Emphasis indicated. mine unless otherwise plaintiff second, that recover by default. the defendant Petitioner, KRITSER, Tom so, writing signed This on June a rendition 1966 did not constitute OF FIRST NATIONAL BANK AMARILLO rather, it is a memorial al., Respondent. et pro- oral rendered No. B-2619. writing To hold that nouncement. would

constituted rendition Supreme Court of Texas. he impeach findings court’s May 12, 1971. separately acted on the two matters simultaneously. sequence than rather Rehearing Denied I said concerning What have the rendi- clearly

tion of this case dis-

tinguishes it from

S.W.2d 136 There is (Tex.Sup.1968). nothing opinion or in our Amarillo, Hugh Umphres, for L. Jr., presents slightest Jones petitioner. indication that in that case or, pronouncement, if oral Nelson, McClesky Harriger, & Clarence rendered, the writing did not cor- Lubbock, Brazill, Fullingim, Jr., P. Jim rectly reflect rendered and Amarillo, Knight, Thompson, Simmons & findings respect made with to the matter of Bullion, Roberts, Harry Dallas, Jr., M. service of the de- citation Pool, Joseph Folley, Snodgrass Cal- H. & fendant. we were concerned houn, Amarillo, Roy Snodgrass, re- only judge with the of whether spondent. could, tunc, he correct an error rendering judgment. made in held We that the error was in the rendition PER CURIAM. than rather entry of a judgment theretofore rendered for writ error re- and was unauthorized made and void. We fused, no do not reversible an holding respect identical ef- to an judgment making regard deter- fort to rendering correct an error made in land of interest in the or construc- mination *7 judgment in Di- Comet Aluminum Co. v. tion of deed in the event Anna Belle brell, (Tex.Sup.1970). 450 S.W.2d 56 die grandchildren Kritser should sur- viving her child of her but without I would judg- hold surviving. ap- own We not intend to do ment of 23rd to be a valid prove disapprove following language decided, ment. Having so I then would opinion: appeals “(3) of civil hold that the trial court was authorized to If Belle children and all of Anna Kritser’s grant respondent’s motion for new trial per stirpes predeceased their descendants 306b, provisions virtue of the of Rule her, Anna Belle sisters would take Kritser’s Texas Rules of Civil Procedure. the remainder interest.” WALKER, joins J., this dissent.