Batson v. Bentley , 297 S.W. 769 ( 1927 )

At a former day of this term this court dismissed the appeal of Batson, because no final judgment disposing of the rights of Mrs. Bertie Bentley had been entered in the court below. See 295 S.W. 316. After the appeal was dismissed, the defendants, appellees here, filed a motion in the district court of Wheeler county to correct and amend the judgment entry in accordance with the judgment, as it was originally rendered by the court, disposing of Mrs. Bertie Bentley as a party. This motion was filed on the 1st day of August, 1927, and presented to the trial judge in chambers, who ordered that notice be given to plaintiffs attorneys, commanding them to appear on August 6, 1927, and show cause, if any, why the motion should not be granted. The record shows that thereafter, by agreement of all parties, the hearing was postponed to August 22, 1927, a day during the regular term of said court. On said August 22d a judgment nunc pro tune was entered in open court, which recites that both plaintiffs and defendants appeared by attorneys, and that the motion to amend and correct the original judgment was heard, and that, it appearing that the name of Bertie Bentley, one of the defendants, was through clerical error omitted from the judgment as entered on the 10th of September, 1926, and it further appearing that the judgment as rendered did dispose of Bertie Bentley, said original judgment was amended and corrected, so as to read that the plaintiff, J. A. Batson, take nothing as to either of the defendants, W. E. Bentley, Bertie Bentley, or M. Reynolds.

The plaintiff duly excepted to this judgment nunc pro tune, and gave notice of appeal. Thereafter, on August 24, 1927, the defendants, W. E. Bentley, Bertie Bentley, and M. Reynolds, have filed their motion in this court to have the appeal reinstated, and on the same date have filed a motion for certiorari to perfect the record in the case. The rule seems to be that a motion to amend or correct a judgment may be made in the court below by either litigant. 1 Freeman on Judgments (5th Ed.) p. 339.

After a careful review of the proceedings and the authorities presented, we have concluded that the appellees' motion to reinstate the appeal must be overruled. The authority of the court to amend and correct the original judgment by the entry of a subsequent judgment nunc pro tune, at the following term of the court, by adding the name of Mrs. Bentley, seems to be well settled. Whittaker v. Gee, 63 Tex. 435; Coleman v. Zapp, 105 Tex. 491,151 S.W. 1040; Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co. (Tex.Civ.App.) 189 S.W. 784; Tillman v. Peoples, 28 Tex. Civ. App. 233,67 S.W. 201; and Smith v. Moore (Tex.Civ.App.) 212 S.W. 988, in which last-cited case it is held that the court may amend such a judgment upon his own recollection of what judgment was actually rendered. Since the judgment as originally entered was not final, it will not support an appeal, and this court acquired no jurisdiction by the former attempt of Batson to appeal. Since there was no final judgment to support an appeal, we have concluded that we have no authority to reinstate upon the docket an attempted appeal, which was a nullity, because it was not based upon a final judgment. If either party to the judgment entered nunc pro tune desires to prosecute an appeal, or to bring the controversy before this court by writ of error, such party may do so, within the time prescribed by law from the entry of the judgment nunc pro tune. Luck v. Hopkins, 92 Tex. 426, 49 S.W. 360; Hall v. Read, 28 Tex. Civ. App. 18,66 S.W. 809; Henry v. Boulter, 26 Tex. Civ. App. 387, 63 S.W. 1056; Bassett v. Mills, 89 Tex. 162, 34 S.W. 93; Partridge v. Wooton,63 Tex. Civ. App. 280, 137 S.W. 412; Broderick Bascom Rope Co. v. Waco Brick Co. (Tex.Civ.App.) 150 S.W. 600.

It follows, from what has been said, that the application for certiorari to amend the record must be overruled. Since the appeal has been dismissed from this court, there is no record to be amended.

The motion to reinstate and the application for certiorari are both denied.