This is an injunction suit, brought by plaintiff in error, the railway company, against defendant in error, to restrain the collection 'by execution of an amount added to an original judgment by amendment in the District Court on motion after the term. The amount of the original judgment with all costs was paid by the company, and it is only the amount added to the same by the amended judgment that is sought to be restrained. *451
The court below, trying the case without a jury, adjudged the judgment as reformed to be valid, and refused to enjoin its collection on final hearing, holding that there was a clerical error in the original judgment which was amendable at a subsequent term of the court. The railway company has brought the case to the Supreme Court by writ of error.
Haynes, Birge Levy sued the railway company for the value of eighty-seven bales of cotton, weighing 43,064 pounds, destroyed by fire negligently caused by the company while in its possession, for which they held the company's bills of lading — one for fifty-one bales, weighing 25,564 pounds; one for thirty bales, weighing 14,489 pounds; and the third for six bales, weighing 3011 pounds. These bills of lading were all attached to the petition in the original suit as exhibits. The company answered nonliability, on the ground that they had delivered the cotton before it was burned. "There was no controversy over the number of bales or their weight, and the railway company on the trial did not deny that eighty-seven bales were burned, which weighed aggregating 43,464 pounds," really only 43,064 pounds. The case was tried by the court the 30th day of April, 1888, and he rendered his decision for the plaintiff for the eighty-seven bales of cotton burned, valuing it at 9 1/2 cents per pound, with interest at 8 per cent per annum from the date of the fire. The court filed his findings of fact, that the railway company had negligently burned eighty-seven bales of cotton belonging to the plaintiffs, which cotton was worth 9 1/2 cents per pound, and allowed the interest before stated from the time of the fire. In estimating the weight of the cotton the court only took the weights of the fifty-one bales and the thirty bales as shown by the bills of lading, and in computing the gross weight omitted to include the bill of lading for the six bales, weighing 3011 pounds, thus estimating the weight of only eighty-one bales at 9 1/2 cents per pound. His findings (in writing) do not show how the error occurred, but as shown on the trial of the case before us, he explains that the mistake occurred as follows: He intended to add up the weights of the eighty-seven bales, and asked some one to call out the weights from the three bills of lading, and the person only called out the weights from two of them, omitting by oversight to include the six bales lot. The judge thought he had included the weights of all the cotton, and testified that he found for plaintiffs the weight of the entire eighty-seven bales and intended to give judgment for that amount, and thought he had done so until the motion to correct the judgment was filed. The defendants in the suit appealed the case to the Supreme Court, and after the appeal was perfected the transcript with assignment of errors was filed in the Supreme Court. The plaintiffs, on the 18th of October, 1888, at the next term of the District Court, as soon as they learned of the error in the judgment as originally rendered, filed a motion in the District Court to correct the *452 judgment because of the foregoing facts; and on the 22d of October, 1888, the railway company being duly served, in regular session, the court upon hearing the evidence granted the motion, the railway company declining to appear. The Supreme Court was then in session, and on the next day after the assignment to which the appeal belonged, to-wit, on the Tuesday after the Monday on which the assignment was set, the plaintiffs filed a motion in the Supreme Court, with a certified copy of the judgment as amended attached, asking the court to consider the amended judgment as a part of the record in the cause, which motion was overruled and the original judgment was affirmed. The mandate issued. The grounds upon which the motion was overruled by the Supreme Court do not appear. Subsequently the execution sought to be enjoined was issued after payment of the original judgment as affirmed with costs.
The first error assigned by the company for our consideration is, that the court below erred in its first conclusion of law in finding that the mistake by the District Court in not including the six bales of cotton was a clerical mistake that could be corrected on motion at the succeeding term; because the facts show that the same was not a clerical error, but, if an error at all, was an omission of the consideration of evidence in the case, and plaintiffs' remedy, if any, was by motion for a new trial during the term.
We believe that this assignment of error is well taken. The oversight of the court was not of that character that could be corrected after the term by motion under the statute; it was a judicial mistake, and could be corrected only by motion for a new trial or appeal. There was nothing in the record showing how the omission of the weight of the six bales occurred. Had the findings of the court or his docket entries given the data by which the judgment could be amended the principle would be different. Without knowing what was in the breast of the court, the manner of committing the error could not be ascertained. It would appear from the evidence that the weight of 3011 pounds of the cotton at 9 1/2 cents had been omitted. What the trial judge remembered as explanatory of the error could not be made available in a motion to amend. The record proper would not show that there was any mistake — that is, such part of the record as could be resorted to for the purpose. The court had the evidence before him, and in estimating the amount due acted in the capacity of a jury, and neglected, or by oversight, it is assumed, failed to render judgment for the full amount due; in other words, failed to do justice between the parties. Suppose the case had been tried by a jury and they had returned a verdict similar to the findings of the court. The record could not correct the mistake or show that there was a mistake. Such a correction would be making a new verdict by the court. The court's findings ascertain that there were eighty-seven bales of cotton of the value *453 of 9 1/2 cents per pound, but they do not ascertain how many pounds there were, or that any of the cotton was not included. In order to know the weight of the cotton and how much was omitted, we are compelled to refer to the evidence.
A verdict received and recorded for a sum certain as principal and interest" due on a note sued on was held to be conclusive. Messner v. Hutchins,
In the case of Ramsey v. McCauley,
In Cowan v. Ross,
In McConkey v. Henderson,
In Ximenes v. Ximenes,
Chief Justice Willie says, that "frequent decisions of the Supreme Court of this State have settled the right to have a judgment amended after the expiration of the term at which it was rendered, when through mistake or clerical error the record does not speak fully or truly the judgment as actually rendered." It was held proper for the presiding judge to so correct a judgment as to the name of one of the parties in whose favor it was rendered, the judge's docket furnishing the data for the correction. It was also decided, that as the amendment could be made before appeal to the Supreme Court, after the term, it could as well be done after the appeal was dismissed. Whittaker v. Gee,
The case of Russell v. Miller,
In both articles of the Revised Statutes, 1354 and 1355, the court is authorized to amend its judgments in certain cases "according to the truth and justice of the case;" in article 1354 the means by which the record, judgment, or decree may be corrected is not stated; in article 1355, which allows an amendment in vacation, it must be done. But verdict or instrument in writing whereby it may be safely done. But it seems from the authorities cited above that the correction under both statutes can only be done by matter appearing in the record. The conditions are particularly defined in article 1355, and those conditions must exist to authorize the change by motion, and it must be true that such an amendment may be had in open court, under circumstances that would not be allowed in vacation. But if a note sued on is not such an "instrument in writing" under article 1355 as would give the court power to correct its judgment or the verdict of a jury, it would not be such matter of' record under article 1354 as would empower the court to add to the findings of the judge acting as a jury in determining the merits of the case. The bill of lading in this case stands upon no better footing than a promissory note, and in our opinion can not be made the basis of a correction of the judgment by motion. The error was not clerical, as it must be in all cases to authorize the change; it was the judicial act of the court — an error in failing to consider the evidence in the case, which could only be reached by new trial or resort to an appellate court. Besides, as before stated, it requires parol evidence to show what the intention of the court was in rendering the original judgment and to show how the error occurred, which could not be permitted. Stich motions, if sustained at all, must be predicated on the record.
It seems that our conclusion must be the same as that reached by the Supreme Court in this case in overruling the motion to make the judgment a part of the record of the case, while it was there pending on appeal. Had the ruling been upon the ground that a certiorari was the only proper method of bringing up the amended judgment, the Supreme Court would have dismissed the motion instead of overruling it. At all events the court had no power to amend the judgment on the motion, and its order of amendment was not res adjudicata, the court having no authority to make the order. It is claimed by defendants in error that the court in this injunction proceeding, having the parties and the facts of the original error before it, had the power to amend the judgment, and should proceed to do so. *457
All the facts were set up in the answer as supporting the amendment to the original judgment, and there was a prayer in the alternative that in case the amended judgment could not be sustained, the court should amend according to the findings of the judge so as to include the value of the 3011 pounds of cotton at 9 1/2 cents per pound, and interest from the date of the fire. There was also a prayer "for general and special relief such as the facts will authorize."
We do not think this is a case where such relief can be granted. To do so the original judgment must be set aside. As affirmed by the Supreme Court, it is res adjudicata of the matters involved in the controversy. That judgment is not void, nor in anywise invalidated by the amendment proceedings. Had this proceeding been to enjoin the collection of that judgment, then in case it had been set aside and enjoined the District Court could have proceeded to render such judgment as should have been rendered on the merits of the case. Witt v. Kaufman, 25 Texas Supp., 384; Willis v. Gordon,
We conclude that the judgment of the court below should be reversed, and that the collection of the amended judgment should be perpetually enjoined. We also conclude that the cause should be remanded.
Reversed and remanded.
Adopted December 8, 1891.