Hurlbut Semple v. Lang , 10 Tex. Civ. App. 168 ( 1895 )

This is a suit by appellee, Virdie Lang, against S.A. Sparks, sheriff, and Hurlbut Semple. The petition complains of S.A. Sparks, sheriff, and Hurlbut Semple, a firm composed of Bert. E. Hurlbut and Frank J. Semple. Judgment was rendered in favor of appellee against Hurlbut Semple, a firm composed of Bert. E. Hurlbut and Frank J. Semple, and Sam Sparks, sheriff, etc., from which defendants below have appealed.

The only assignment of error relates to the variance in the names of the defendants as stated above, because of which we are asked to reverse the judgment and remand the cause. After the appeal was perfected, upon motion of appellee in the lower court, the judgment of the court was corrected so as to make it conform to the petition, making the judgment read against S.A. Sparks, sheriff, etc., and Hurlbut Semple, a firm composed of Bert. E. Hurlbut and Frank J. Semple. An additional transcript of the proceedings had upon the motion to correct the judgment has been filed in this court. It was within the power of the lower court after appeal to amend the judgment, though the jurisdiction of this court had attached. Chestnutt v. Pollard, 77 Tex. 87. The error as it originally stood has been eliminated by the amended judgment. The error was manifestly a clerical error, and this court could and would have corrected the judgment and rendered such judgment as should have been rendered below, without the correction by amendment. The defect in the original judgment was not called to the attention of the lower court or the plaintiff until the appellants' brief was filed in that court.

The judgment of the lower court as amended appearing to be in form as it should have been at first rendered, it is affirmed. The costs of the appeal are taxed against the appellee.

Affirmed.