Smith v. Moore , 212 S.W. 988 ( 1919 )

This is is an appeal from the judgment, or nunc pro tune order correcting a judgment theretofore entered, in the above-styled cause. From the transcript, the following history of the case is taken:

The suit was filed by R. D. Smith, as next friend of Sarah J. Moore, to set aside two deeds to lands, made by the latter to R. D. and Margaret K. Moore, upon the ground that Sarah J. Moore was non compos mentis. After the latter's death the suit was prosecuted by T. E. Smith as administratrix. The grantees, R. D. and Margaret Moore, executed notes and a deed of trust upon the lands to secure their payment, and the Wooten Grocery Company, having acquired these notes, were made party defendant.

Upon the trial, in 1914, judgment was entered refusing cancellation of the deeds, but making no reference to, or affirmative disposition of, the Wooten Grocery Company. July 29, 1916, appellants filed a motion to set the cause down for trial upon the grounds that no final judgment had been entered, because all parties defendant were not disposed of. Whereupon appellees filed their motion to enter judgment nunc pro tunc disposing of all issues and parties. Whereupon, February 9, 1918, the court entered its judgment containing order overruling the motion to set the case for trial, and entered its judgment nunc pro tunc correcting the original judgment to the effect that appellants take nothing against the Wooten Grocery Company. From which it comes to us by appeal.

There is no statement of facts in the record, nor finding of facts by the trial court. The first two assignments complain that it was error for the court to overrule the motion to set the case down for trial on its merits because:

"There had been no trial upon the merits, no final judgment, no verdict of a jury, nor order or judgment of the court entered upon the minutes of the court on trial docket affecting or disposing of the Wooten Grocery Company."

The other assignments charge error in the entry of the nunc pro tune order appealed from upon the ground: (1) That it was shown by the records of said court and the evidence adduced herein that no judgement was rendered by the court or entered upon the minutes affecting or finally disposing of the Wooten Grocery Company, etc. The other reasons are substantially the same as those given under the other assignments.

It is apparent that such assignments cannot be considered without a statement of facts or finding of facts; for, in the first place, for all this record discloses, the original judgment was final, because the Wooten Grocery Company was disposed of by necessary implication. Trammel v. Rosen, 106 Tex. 132, 157 S.W. 1161. And a bill of exceptions does not supply the office of a statement of facts, however full its recital of 628.

I therefore concur in the affirmance, but upon the ground that the record is insufficient to enable us to consider the errors assigned.

On Rehearing.