Owens v. Vander Stucken

Court of Appeals of Texas

Owens v. Vander Stucken

133 S.W. 491, 1910 Tex. App. LEXIS 973

CourtCourt of Appeals of Texas

DecidedDecember 21, 1910

StatusPublished

Cited by4 cases

This text of 133 S.W. 491 (Owens v. Vander Stucken) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Owens v. Vander Stucken, 133 S.W. 491, 1910 Tex. App. LEXIS 973 (Tex. Ct. App. 1910).

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Opinions

JAMES, C. J.

On October 31, 1907, a judgment was entered in the district court in favor of Vander Stueken against Owens for $1,709.19, with interest from said date and for costs, and for the further sum of $40.20 and foreclosing a mortgage or deed of trust lien on certain cattle. Pending the proceeding plaintiff had sequestered and defendant hp.d replevied the property. On November 11, 1908, Vander Stueken filed a motion to correct the judgment, praying for a nunc pro tunc order to reform and correct the judgment by making it provide that plaintiff recover from defendant Owens, and from the sureties on defendants’ replevy bond, jointly and severally, if the cattle cannot be had, etc.; it appearing that the judgment of October 31, 1907, contained no adjudication against the sureties, as is provided for by article 4876, Rev. St. 1895.

It is contended by appellants that the court had no power after the term to amend or correct the final judgment nor grant a new trial; the motion not embodying a case setting up fraud or mistake, nor presenting a case coming within articles 1356 and 1357. All this may be conceded.

There appears in the judgment as corrected, the one appealed from, this recital: “Entered this 29th day of March, A. D. 1909, at a regular term of this court as of date October 31, 1907, this being the judgment actually rendered by this court upon that date, but which fails of appearance in the judgment entered by the clerk, to which defendants except and give notice of appeal,” etc. It is manifest from this record that the judge corrected the judgment entered in 1907 by making it speak the judgment he actually rendered, but which failed to be entered as rendered. This is not an amendment or chahge of the judgment. It is manifest, also, from the record and from the recital, that the judge acted upon his recollection, and this he was authorized to do, even without any motion. Railway v. Roberts, 98 Tex. 46, 81 S. W. 25; Wight v. Nicholson, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865.

The judgment is affirmed.

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JAMES, C. J.

On October 31, 1907, a judgment was entered in the district court in favor of Vander Stueken against Owens for $1,709.19, with interest from said date and for costs, and for the further sum of $40.20 and foreclosing a mortgage or deed of trust lien on certain cattle. Pending the proceeding plaintiff had sequestered and defendant hp.d replevied the property. On November 11, 1908, Vander Stueken filed a motion to correct the judgment, praying for a nunc pro tunc order to reform and correct the judgment by making it provide that plaintiff recover from defendant Owens, and from the sureties on defendants’ replevy bond, jointly and severally, if the cattle cannot be had, etc.; it appearing that the judgment of October 31, 1907, contained no adjudication against the sureties, as is provided for by article 4876, Rev. St. 1895.

It is contended by appellants that the court had no power after the term to amend or correct the final judgment nor grant a new trial; the motion not embodying a case setting up fraud or mistake, nor presenting a case coming within articles 1356 and 1357. All this may be conceded.

There appears in the judgment as corrected, the one appealed from, this recital: “Entered this 29th day of March, A. D. 1909, at a regular term of this court as of date October 31, 1907, this being the judgment actually rendered by this court upon that date, but which fails of appearance in the judgment entered by the clerk, to which defendants except and give notice of appeal,” etc. It is manifest from this record that the judge corrected the judgment entered in 1907 by making it speak the judgment he actually rendered, but which failed to be entered as rendered. This is not an amendment or chahge of the judgment. It is manifest, also, from the record and from the recital, that the judge acted upon his recollection, and this he was authorized to do, even without any motion. Railway v. Roberts, 98 Tex. 46, 81 S. W. 25; Wight v. Nicholson, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865.

The judgment is affirmed.

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133 S.W. 491, 1910 Tex. App. LEXIS 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-vander-stucken-texapp-1910.

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