Sumrall v. Russell

274 S.W. 640

• Court: Court of Appeals of Texas
• Decided: February 21, 1925
• Docket: No. 11306.
• Status: Published

Opinion

BUCK, X

Appellant, L. Sumrall, plaintiff below, filed tbis suit in tbe Ninety-First District Court of Eastland county. Issues were joined. Tbe cause was submitted to a jury on special issues, and upon tbe answers of tbe jury tbe court entered judgment for defendant T. A. Russell, denying a recovery by plaintiff, and by certain interveners wbo bad come into tbe case. Plaintiff filed bis motion for new trial, wbieb was by tbe trial court overruled. An appeal was taken to tbis court and the cause was transferred by tbe Supreme Court to tbe Court of Civil Appeals sitting at El Paso, which court affirmed tbe judgment on October 11, 1923, and motion for rehearing was overruled on November 8, 1923 (255 S. W. 239). On November 15,1923, a second motion was filed and overruled. Appellant then filed an application for writ of error to tbe Supreme Court, which was dismissed for want of jurisdiction on January 2, 1924. On March 24, 1924, appellant filed in tbe El Paso Court of Civil Appeals a motion to certify to tbe Supreme Court a question alleged to be involved, and tbis motion was on April 3, 1924, overruled. A second motion to certify was then filed, and by tbe court overruled on April 24. The appellant then filed a motion to set aside tbe judgment of affirmance and to dismiss tbe appeal, on tbe alleged ground that tbe judgment in the district court bad never in fact been entered on tbe minutes of the court. The El Paso Court of Civil Appeals overruled this motion (262 S. W. 507), and said:

“Having thus exhausted all of bis remedies in tbis court and the Supreme Court, endeavoring to secure reversal upon its merits, the appellant on May 16th, filed a motion to set aside the judgment of affirmance and to dismiss the case from the docket of this court, setting up ■that the judgment of the district court of East-land county, shown on page 54 of the transcript, bad never in fact been entered in the minutes of the district court, and therefore this court has no jurisdiction of the appeal. In support of the motion there is attached the affidavit of the said Roy Nunnally, clerk of said court, that there is no such judgment entered in the minutes of the district court of East-land county, so far as he can find after a careful search, though he does find among the original court papers what appears to be the original decree, which bears no indorsement or file mark.

“The transcript of the proceedings in the trial court certified under the hand and seal of its clerk imports verity. In a proper case this court has the power and will consider evidence dehors the record to ascertain whether it has acquired jurisdiction of an appeal. But it cannot consider evidence aliunde contradicting the record. Paris v. Du Bose, 27 Tex. 6; Dennis v. Kendrick (Tex. Civ. App.) 163 S. W. 693; Gibson v. Singer Sewing Mach. Co. (Tex. Civ. App.) 145 S. W. 633; Southern Pacific Co. v. Winton, 27 Tex. Civ. App. 503, 66 S. W. 477.

“The affidavit of Nunnally is an attack upon the verity of the transcript which he has certified to under the seal of his office, and we decline to give it any effect.”

On October 2, 1924, .the district court granted tbe motion of defendant Russell to enter nunc pro tunc, on tbe minutes of tbe trial court, the judgment theretofore, on, to wit, tbe 1st day of July, 1922, rendered but not entered on tbe minutes. To tbis judgment, so entered by nunc pro tunc order, tbe plaintiff filed bis motion for .new trial October 4, which motion was overruled on tbe same day. An appeal bond was filed on October 23, 1924.

Appellee has filed bis motion to dismiss the appeal. He urges that appellant bad one appeal from the judgment of tbe trial court, and that tbe appeal was decided as if tbe judgment against appellant was in fact entered of record in the minutes of the trial court; that tbe judgment rendered, and upon which tbe appeal was first taken, bears tbe approval of appellant’s then attorneys, and was in fact tbe same judgment as shown in the present transcript, and from which tbis appeal is taken. We find tbis to be true. Appellant, on tbe other band, contends that the action of tbe Court of Appeals sitting at El Paso was in effect null and void in that said court was without jurisdiction to pass on tbe merits of tbe appeal, inasmuch as no judgment had, at tbe time it disposed of the ease on its merits, been entered on the minutes of tbe trial court. .

At tbe time tbe El'Paso Court of Civil Appeals passed on tbe motion to dismiss tbe appeal, that court certainly bad jurisdiction of that motion, and it overruled tbe mo-, tion for tbe 'reasons stated, which appeared sound to tbe court. Appellant’s only remedy was an application for a writ of error to the Supreme Court. This court cannot review in tbe same case and from tbe same judgment another court of Civil Appeals decision. So far as thisx court is concerned, tbe decision rendered by the El Paso Court of Civil Appeals is res judicata of tbe question there decided. Any other conclusion and practice would probably result in two different decisions by different courts of civil appeals in tbe same ease.

Tbe cause is stricken from tbe docket.