| Tex. | Jul 1, 1875
This is a motion made at the present term of the court to correct the entry of a judgment rendered at a former term, (39 Tex.; 49,) upon the ground that it appears from the docket-entry and the opinion ot the court that the judgment pronounced by the court was not correctly entered. It is not claimed that the court can, after the adjournment of the term at which a final judgment in a case is rendered, reopen the cause to correct errors and irregularities, however glaring and apparent they may be, which have occurred in the proceedings had in the cause. But what is here asked is, that we will now make the minutes of the court show a correct entry of the judgment rendered at the former term.
As was said by Mr. Justice Wheeler in Bennett v. The State, (14 Tex., 456,) “ Every court has the right to judge of its own records and minutes, and if it appear satisfactorily to them that an order was actually made at a former term and omitted to be entered by the clerk, they may at any time direct such order to be entered on the records as of the term when it was made.” (See also Rhodes v. The State, 29 Tex., 190.)
In these cases the entries in question were made by the District Court before final judgment. But the principle announced seems to be equally applicable to this court. And there can be no doubt, we think, that this court may, at a subsequent term after a final judgment, if there is the proper predicate for it, correct clerical errors or mistakes, cure defects of form, or add such clause as may be necessary to carry out the judgment of the court, make the entry in the minutes correspond with and correctly express the judgment actually rendered, as shown by the entire record, or may declare a judgment altogether null and void which was rendered in a case not legally before it. (Chambers v. Hodges, 3 Tex., 529.)
The evidence relied upon to warrant the amendment or correction of the judgment entry sought by this motion is the memoranda upon the docket, the written opinion of the judge who, as the organ of the court, announced its views in the case, and the certificate of the clerk explaining the discrepancy between the memoranda of the court on the docket and the judgment entry on the minutes.
The opinion of the court and notes upon the docket may unquestionably be regarded as a part of the record, and may be looked to in determining the propriety of granting the motion. This cannot be said in regard to the certificate of the clerk. His personal recollection, whether presented by affidavit or certificate, does not, as it seems by the weight of authority, present any basis for the amendatory order asked for. (Freem. on Judg’ts, sec. 72.) But as there is considerable conflict in the decisions on this point, and the evidence furnished by the certificate of the clerk is of no material importance in the view we take of the matter, we need not decide whether, in passing upon such questions as are presented by the motion the court must look alone to the record or may also consider such evidence as would be competent and admissible in any other investigation.
The judgment of the District Court in this case was to the effect that Ursula Ximenes should recover judgment against the defendant, Smith, for the amount due upon the note on which the suit is brought. And it was also “further ordered, adjudged, and decreed by the court that the intervenor, W. D. Mays, take nothing by this suit, and that the intervenor, Melchior Ximenes, take nothing by his suit, and that they each pay such costs as they have
It seems quite apparent from the opinion delivered by Mr. Justice Walker (39 Tex., 49" court="Tex." date_filed="1873-07-01" href="https://app.midpage.ai/document/ximines-v-smith-4891857?utm_source=webapp" opinion_id="4891857">39 Tex., 49) that he was strongly of the opinion that the judgment of the District Court in favor of Ursula Ximenes against Melchior Ximenes was erroneous. And although seeming to have some doubt of the power of the court to relieve him, as he had filed no appeal bond, an inspection of the manuscript opinion in connection with the entry on the court docket justifies the conclusion that he at least, and probably the court also, was of opinion, when this entry was made, that, as Mays had given an appeal bond, this relieved Melchior Ximenes from the necessity of doing so; and we may infer that it was the purpose of the court at first, while affirming the judgment as to the other parties, to reverse it as to him.
We are not, however, of the opinion that the appeal bond given by Mays authorizes the court to review the case as between Melchior and Ursula. It is true, when both plaintiff and defendant" appeal and assign errors, if the appeal is perfected by one of them, it is held that the entire ease is before the court, and it may pass upon the errors assigned by both parties, although an appeal bond has been given by only one of them. But this is altogether a different case. As we have said, Mays and Melchior assert and rely upon distinct and independent grounds of action. The bond would warrant the court in consid
The opinion as first written is as follows, to wit: “ The judgment of the court is therefore affirmed as between Ursula Ximenes and W. D. Mays and S. 8. Smith, but it is reversed and remanded, to be further proceeded in, as to the rights of Melchior and Ursula.”
This conclusion, it will be seen, fully warrants the entry on the court docket, “ Reversed in part and affirmed in part.” The disposition thus made of the case, as between Melchior and Ursula, as we have just said, appears not to have received the final sanction of the court, for in the concluding clause, remanding the case as between Melchior and Ursula, “Ximenes” is erased from the manuscript opinion by cross lines drawn through it, and in lieu thereof we find written the following interlineation, to wit: “Without prejudice to Melchior Ximenes; ” thus, in effect, making the opinion and the judgment entered by the clerk, and, as we must presume, approved by the court, conform to each other. This change in the original draft of the opinion, as we think, clearly indicates that the court, on more mature reflection, held that the case as to Melchior Ximenes was not before it; for if it was, as the order for the reversal of the judgment was revoked, it was idle to say that it was affirmed without prejudice. It was therefore either simply affirmed or no final disposition was made of it. Evidently the court did not regard the case as remaining in the latter category. The only legitimate conclusion to be deduced from the entire
Whether the judgment of the court is correct or erroneous is not a matter for our consideration. The only question before us or into which we may now inquire is, whether the judgment rendered by the court was correctly entered on the minutes. Believing, from an examination of the entire record, that it is, the motion is overruled.
Motion overruled.