Rogers v. Waggoner

CONNER, O. J. This is an appeal from a judgment of the district court of Wichita county in favor of appellee, W. T. Waggoner, correcting a judgment of the same court entered in appellee’s favor and against appellant on the 31st day of January, 1907. The petition for correction, which was filed in the district court on May 26, 1911, is designated as a motion, and styled and numbered as in the original proceedings, which are set out in the motion, and from which it appears that bn October 12, 1906, W. T. Waggoner, appellee herein, instituted suit in the district court of Wichita county against Mrs. G. E. Rogers, appellant herein, in the usual form of trespass to try title to recover land described in the original petition as “situated partly in Wichita county and partly in Wilbarger county, Texas, and known as fractional section No. 2 by virtue of certificate 5,196, granted Ito the 'Gulf, Colorado & Santa Fé Railway Company, and containing 300 acres of land.” The defendant Mrs. Rogers was cited; but it appearing that she was non compos mentis, a guardian ad litem was appointed, who answered by a plea of not guilty and a special plea, not thought to be material in the present controversy. Upon the conclusion of the trial, the court made the following entry upon his docket, viz.: “Judgment for plaintiff as prayed for.” Upon the same day, to wit, January 31, 1907, judgment was entered upon the minutes of the court, decreeing a recovery in the plaintiff’s favor for land which is described in the judgment in all respects the same as in the petition, except that the decree reads for “fractional section No. 92,” instead of '‘fractional see-tionl No. 2.” Thereafter, on May 26, 1911, the present proceeding as stated was instituted by W. T. Waggoner to correct the judgment referred to so as to have the description of the land awarded in the judgment conform to that given in the petition in the original suit. It is alleged in the motion that the recitation in the judgment for fractional section No. 92 instead of fractional section No. 2, was made by the mistake of the clerk in entering the judgment upon the minutes, and the prayer was that the correction might be made, so as to make the judgment speak the truth. Appellant Mrs. O. E. Rogers was again cited and appeared and answered by guardian, as also by a guardian ad litem appointed by the court, who answered, setting up the mental disqualification of appellant, and, among other things, specially excepted to the motion, as follows: “(a) That said petition or motion shows upon its face that this suit is brought to reform a judgment of this court entered in this cause on the 31st day of January, A. D. 1907; and that more than four years has; elapsed since said judgment was so entered; and that plaintiff’s action herein is therefore barred by the statute of limitations, which is now here specially pleaded. “(b) That said petition or motion is insufficient, for the reason that it do s not show that there was any fraud practiced in the matters set up as a mistake in the description of the land, or that the plaintiff’s counsel were in any way misled by any statement of the defendant. “(c) That said petition or motion does not show that said alleged mistake arose by any other means or manner, or from any other cause, than from the presumed negligence of the plaintiff; and no reason is given why said alleged error could not have been discovered before the close of the term of court at which said judgment was entered.” Article 1356 of the Revised Statutes reads: “Where there shall be a mistake in the record of any judgment or decree, the judge may, in open court, and after notice of the application therefor has been given to the parties interested in such judgment or decree, amend the same according to the truth and justice of the case, and thereafter the execution shall conform to the judgment as amended.” [1] We have no statute of limitation specifically applying to the present effort; but the article of the statute invoked by the exceptions under consideration reads that: “Every action other than that for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.” Rev. St. 1895, art. 3358. Appellee in effect admits that the motion to correct comes too late, if the proceeding is to be properly designated as an “action,” within the meaning of the statute of limitation quoted. It is evident that in such event it must be so, as it appears that the petition or motion to correct was presented more than four years after the entry of the judgment sought to be corrected. Appellee insists, however, that the proceeding is in no sense an “action,” but a mere motion to amend the minutes of the district court of Wichita county, so as to show what in truth was the judgment; and that the statute of limitations has no application. Our Supreme Court, in Ex parte Towles, 48 Tex. 433, defines an action or suit “to be the prosecution of some demand in a court of justice”; and, if this definition be correct, it seems a little difficult to explain just why the present proceeding is not an action, or at least sufficiently in the nature of an action to subject it to the [563] operation of our act of limitation. See Prewett v. Hilliard, 11 Humph. (Tenn.) 423. As used in the statute of limitation, the term seems sufficiently comprehensive to include any and all proceedings necessary to be taken in a court of justice in order to fix a right given either by statute or substantive law; and in the instance before us appellee invokes the statutory right only, and has not alleged one allowable according to the principles of equity. [2] We shall not, however, pause to further discuss the distinction suggested; for the exceptions clearly point out appellee’s delay in the proceeding, and whether the delay be denominated “limitation” or “stale demand” is immaterial. The facts from which the defense arises appear on the face of the motion, and appellant duly pleads them by her exceptions. The judgment, on its face, was complete, and apparently presents no obstacle to the issuance of writs for its enforcement; and the motion to correct it in no way connects appellant with the alleged mistake, or presents any excuse whatever for the failure to earlier discover it. The law favors the diligent, and judgments, in all respects regular on their face, ought not to be subject to disturbance for all time upon mere allegations of mistake on the part of the scriveners who write them. The foregoing view is sustained, we think, by the case of De Camp v. Bates, 37 S. W. 644, by the Court of Civil Appeals for the Fifth District, and in which a writ of error was denied by our Supreme Court. That was a case wherein suit was instituted on January 11, 1893, for the purpose of correcting a judgment entered upon the 18th day of March, 1887; and it was distinctly held that the four-year statute of limitation was applicable and constituted a bar to the proceedings. We approve this decision and conclude that the court erred in overruling appellant’s exceptions, and the judgment herein will be reversed, and the cause remanded. Reversed and. remanded.