Miller v. Richardson

38 Tex. 500 | Tex. | 1873

Ogden, P. J.

The material question presented for decision in this record is, has the District Court authority to enter nunc pro tunc, at a subsequent term, any order or judgment of that court made at a former term, but which, through the mistake of the clerk, or other person, was not spread upon the minutes of the court, and made a part of the record % Articles 49, 51 and 1245, Paschal’s Digest, appear to have been passed expressly to confer such authority upon the district courts, and this court in McKay v. Speak, 8 Texas, 376, and in Swift v. Faris, 11 Texas, 18, clearly recognizes the authority conferred by statute. In Hagler v. Mercer, 6 Florida, 721, it is said, “The entry of the judgment nunc pro tunc is always proper when a judgment has been ordered by the court, but the clerk has failed or neglected to copy it into the record.”

Under the statute and decisions there must be some memorandum in writing among the papers of the cause to authorize the entry of such order or judgment; and in the case at bar there was a memorandum in the motion docket, opposite the motion for a new trial, that the motion was sustained. This memorandum is supposed to have been made by the presiding judge; and from the order and judgment entered at the subsequent term, there can be no doubt that the new trial was awarded at the previous term, but, by mistake, was not entered. In Young v. Braxson, 23 Ala., 364, it is said that the memoranda entered by the judge- upon the motion docket are competent evidence to show the action of the court; we are therefore clearly of the opinion that the court was fully authorized to enter the order nunc pro tunc complained of in this cause. But it is claimed in the assignment of errors that the appellants had no legal notice of the motion for that purpose as required by-law, and that therefore the order was a nullity. There was notice by the service of the original bill, which contained the motion subsequently acted upon by the court; and though the transcript does not inform us of the date of' the action of the court, in the dissolution of the injunction, yet we think it fair to presume that the action on the motion to enter the order granting a new trial, and the motion to dismiss the original bill" for a new trial, were had at the same time, since the court could hardly have granted the one without having overruled the other in the same order.

There are no bills of exceptions, and no statement of facts. The record before us is quite imperfect, and we are warranted in presuming in favor of the legality of the action of the court until the contrary appears.

And being unable to discover any such error in the action of the lower court, as would require a reversal of the judgment, it is affirmed.

Affirmed.