Perkins v. Dunlavy

Citations

• 61 Tex. 241
• 1884 Tex. LEXIS 84

Syllabus

<p>1. Judgment nunc peo tuno.— Though the court may erroneously hold that a defendant is not in court in such manner as to authorize a judgment by default, such error cannot be revised at a subsequent term of the court upon a motion to enter a different judgment nunc pro tunc.</p> <p>2. Same.— A judicial error in entering up an order at a former term, which was not sanctioned by law, or the failure to entér up one which should have been rendered but for the incorrect ruling of the court upon points made before it, cannot be remedied by a judgment to the contrary entered nunc pro tunc.</p> <p>3. Same.— A court having once held that a citation to a defendant was invalid; that no appearance had taken place, and that a judgment by default could not be rendered, has no authority, at a subsequent >term, to reverse its decision, overrule the motion to quash, pronounce judgment by default and' execute a writ of inquiry.</p> <p>4. Same.— For such errors the defeated party has his remedy by appeal after final judgment. But if the suit was for damages for a. tort, he cannot, by reviving an abated action (after the death of the defendant) against the administrator, have the issue tried as to whether he was entitled to a judgment against the deceased in his life-time, and thus cause the administrator to defend against a claim for damages, the right to recover which ceased with the original defendant’s death.</p> <p>5. Same.— In every case, to entitle an applicant to have his judgment entered nuno pro tuno, on account of the death of one of the parties, the action must, at the time of the death, have been ready for the rendition of the final judgment. Such is not the case when a trial has still to take place.</p>