Dillon v. Nall

BOBBITT, Justice. Appellee alleged in this case that appellant slandered him by falsely accusing him of “stealing appellant’s cow” and wrongfully causing his arrest and imprisonment in Bexar county, and asked damages against appellant therefor in the Fifty-Seventh district court of Bexar county. Upon a trial of the issues before a jury — as demanded by appellant — and upon a verdict of such jury, appellee was awarded judgment against appellant in the sum of $1,000 for such alleged wrongful and malicious conduct. In his motion for a new trial, appellant assigned no errors pertaining to the trial of the cause on the merits. Furthermore, in his brief on this appeal, appellant does not assign any errors or present any propositions of law asserting that there were any errors committed in the trial of the case on the merits. Appellant does raise various questions of procedure, including a plea of former judgment, and which he asserts show conclusively that the case had, before the trial, been dismissed from the docket of the trial court for want of prosecution, never lawfully reinstated or restored to the docket, and that the trial .court was, therefore, without authority to proceed with the trial, and that the judgment rendered against him is in effect a nullity. If the cause was in fact actually and lawfully dismissed from the docket and never properly reinstated thereto, then it was not properly tried on the merits and the judgment is without effect. If, on the other hand, the cause was not in fact so dismissed, but remained on or was lawfully restored to the docket, then, under the record here presented and in view of the position of the appellant before this court, the case should be in all things affirmed. When all the issues in this appeal are boiled down to reality there is one, and only one, question involved, and the proper answer to that question will dispose of the appeal. That controlling question is: Did the trial judge, Hon. R. B. Minor, on the [350] date, and under all the disputed facts and conflicting circumstances, in fact, dismiss this cause from the docket of his court? Under the record here presented this is, of course, a question of fact, to be determined as any other question of fact, by the trial court hearing the issues on proper motion calling such question before the court, or by a jury, if in the discretion of the court he wishes to have such fact decided by a jury. This fact issue was properly raised in this case through the motion of appellant to have the court enter the alleged order of dismissal by Judge Minor entered nunc pro tunc. In this hearing on such motion Special District Judge Marion McClanahan, of the Fifty-Seventh district court, sitting in the absence of, and in place of, Judge Minor, did not call upon a jury to decide the facts, but proceeded to hear all the testimony of the various witnesses and to consider all the evidence submitted, and decided that issue himself. Tex.Jur. vol. 25, pp. 440, 441 and cases there cited; Johnson v. Haight (Tex.Civ.App.) 33 S.W.(2d) 510, 511; Smith v. Moore (Tex.Civ.App.) 212 S.W. 988; Lummus v. Alma State Bank (Tex.Civ.App.) 4 S.W.(2d) 195; Parnell v. Barron (Tex.Civ.App.) 261 S.W. 529. After a lengthy hearing on the fact question of dismissal, raised as above stated, whereat much testimony was offered, pro and con, the trial judge concluded and found, as a fact, that Judge Minor “did not dismiss plaintiff’s (appellee’s) cause herein, on March 18, 1935,” and thereon concluded, as a matter of law, that “defendant (appellant) is not entitled to and should not have judgment entering judgment of dismissal nunc pro tunc.” At the conclusion of the testimony, the appellant requested the trial court to file his findings and conclusions, with the result as just above stated, following the hearing on his motion. Such motion of appellant for entry of judgment nunc pro tunc, and which was based, necessarily, on the question as to whether the case had in fact been dismissed, was submitted to the trial court as the trier of the facts. The judgment of the trial court finding that the case had not been dismissed is binding on this court, if there is any substantial evidence to support it. Furthermore,' in a proceeding of this nature wherein the substantial and fundamental rights of litigants are involved and where such are sought to be taken away from them through the application of rules of procedure — technical or otherwise — the trial court is vested with and should exercise some fair judgment and discretion, in addition to his ordinary duties as a trier of the facts, in order that injustice may not result from their application, in view of the facts and circumstances of the particular case. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Peckham v. Clark (Tex.Civ.App.) 294 S.W. 278. In the case at bar, we must presume that the trial court acted in good faith, gave due consideration to all the evidence, heard and observed all the witnesses as they appeared, and was, of course, in a much better position to arrive at a correct conclusion as to the true facts, than this or any other appellate court. It is for these, as well as other, good reasons that all appellate courts should be slow to set aside or render ineffectual the findings of a trial court. There are many facts and circumstances set forth in the record before us which show that Judge Minor did not intend, and did not in fact dismiss appellee’s suit. In any event, and for the reasons stated, this court should not substitute its judgment on the facts for that of the trial court; if such judgment has support in the evidence. Wooton v. Manning, 11 Tex. 327; William Finck & Co. v. Nacogdoches Mercantile Co. (Tex.Civ.App.) 163 S.W. 590; Moore v. Chapman et al. (Tex.Civ.App.) 168 S.W. 6; Johnson v. Haight (Tex.Civ.App.) 33 S.W.(2d) 510. It appears that appellant does not attack the fact finding of the trial court that the case was not dismissed on the stated date. The transcript contains no bill of exceptions to this action of the trial court. The hearing and ruling on appellant’s motion to enter judgment nunc pro tunc is a matter foreign to the issues and the trial of this case on the merits. Such finding o'f fact by the trial court, not being challenged by appellant by assignments of error, bills of exceptions, or propositions of law, is presumed by this court to be correct. The rule is well established that, where a motion or a case is tried before a court, his findings of fact are presumed to be correct in the absence of any attack by proper assignments of error. It seems, therefore, that appellant should not be further heard to complain that this motion was not properly determined by the trial court. Selkirk v. Selkirk (Tex.Civ.App.) 297 S.W. 578; Harvey Co. v. Braden (Tex.Civ.App.) 260 S.W. 655. [351] On the question of appellee having filed a motion to reinstate the cause, on the day of the alleged dismissal, and his having filed an alternative plea in this suit to the effect that if the case had, in fact been dismissed, it had also been reinstated, it appears that such action in both instances was, under the peculiar circumstances of the case, proper and in no way prejudicial to the rights of appellee, when fairly and practically considered along with all other proceedings in this case. Furthermore, such action in no way prejudices any right of appellant. He is in no way harmed if one of the attorneys for appellee became excited over a threatened action of the trial court and filed a motion which was, under the facts, wholly unnecessary in the first instance, and purely as an alternative plea in the present suit. At most, such action by counsel for appellee was in the first instance, in so far as this case is concerned, and can be considered only as a circumstance and as evidence as to what the trial judge actually did, as to the dismissal of the suit. This circumstance and all the other circumstances and evidence were considered by the trial court on the question of fact as to the dismissal of the suit, and were found against appellant. An alternative plea, such as appellee filed in this cause, does not affect or limit the integrity of the main plea or any other plea to which it may relate or refer. There was no error on the part of the trial court in overruling appellant’s exceptions in this respect, and even if there was, such error becomes wholly immaterial and harmless, in view of the court’s finding that the case was never, in fact, dismissed. Passing now to the controlling question in this case, to wit: Whether or not there is evidence to support the finding and judgment of the trial court that Judge Minor did not in fact dismiss this cause of action on March 18, 1935, it appears that the record in this case fully sustains the action and judgment of the trial court. In the first place, it affirmatively appears from the record that counsel for appellee were diligent in their efforts to bring this cause to trial, having had it set for trial on several occasions and having appeared in the trial court on the date of the alleged dismissal, just a few moments after the case had been called; his absence on this particular occasion being clearly and satisfactorily explained. In the second place, neither appellant nor any of his attorneys were in court on the date of the alleged dismissal, either for the purpose of having the cause dismissed or of participating in the trial. It is clear from all the facts and circumstances shown by the record, that Judge Minor did not formally pronounce judgment of dismissal of the cause. He was not requested so to do. There was no occasion for such action on his part, particularly when he understood that counsel for ap-pellee had been informed by Clinton G. Brown, Esquire, that his case, which was on the docket ahead of appellee’s, would be tried on such date, and appellee’s case could not be reached; and because Judge Minor called his docket on this particular date at an earlier time than was customary in his court, and certainly at an earlier time than counsel for appellee understood he called his docket for announcements and settings. Mr. Brown’s case was not tried as had been arranged and as he had notified counsel for appellee. The judge then called appellee’s case just a few minutes before appellee’s counsel arrived in court. The testimony of witnesses Brown, Covington, and Court Clerk Sam Garoni, each of whom testified to direct statements made by Judge Minor on the day in question, together with all the other testimony and circumstances, affirmatively shows that it was not the intention and purpose, and that Judge Minor did not, in fact, dismiss this suit from his docket, as found by the trial court at the hearing held on appellant’s motion. In this connection, when Judge Minor was presented with the usual written order for his signature to give effect to his alleged pronounced judgment, he refused to approve it. This circumstance shows, conclusively, that the judge refused to give effect to the action which appellant now claims was a formal pronouncement dismissing this suit. The fact that Attorney Covington, for appellee, misunderstood the intention and the action of the judge and prepared and filed a motion to reinstate the case, stating therein that it had been dismissed from the docket, should not and did not, in our opinion, have any particular bearing on the true facts of the case. Furthermore, it must be remembered that Judge Minor, at that particular, time, was a sick man. The record shows he left his courtroom that same day and never returned. There was, it appears from the record, much confusion and much difference of honest opinion by the several witnesses as to exactly what, if any, official pronouncement Judge Minor in fact made as to the dismissal or threatened dismissal [352] of this case. To settle this question definitely and legally each of the parties submitted all their testimony, and all the available evidence to the special district judge, sitting in the absence of Judge Minor, and such special judge found, as a fact, t'hat Judge Minor had not pronounced judgment dismissing the suit, and we do not think this court has any authority, under the record before it, to substitute its findings for those of the regularly constituted trier of the facts, in a proceeding brought by appellant to have'the facts determined. While it is not controlling, it is important that such action of this court would thereby nullify the judgment of the court rendered on the verdict of the jury, following a trial of the case on its merits. And we here again point out the fact that as to the justice or integrity of the verdict and judgment of the trial on the merits, appellant does not complain. Tex.Jur. vol. 3, p. 1088, et seq. The case of Love v. State Bank & Trust Co. (Tex.Com.App.) 90 S.W.(2d) 819, cited by appellant in support of his contention, is not decisive of the question involved in this case. The judgment there involved had unquestionably been pronounced, written, signed, and duly entered in the minutes of the court. Months and years had elapsed, and then upon a (mere motion, one of the parties undertook to have a different judgment entered than that which had in fact been entered, and recorded in the minutes * of the court. That question or issue, as there presented, could only be reached through a proper proceeding in the nature of a bill of review. We have no such question here. The only issue here is whether or not the case was in fact dismissed from the docket. If it was not dismissed, then it was still on the docket, as the trial court found, and subject to be tried, as it was regularly tried. There is no question of correcting, amending, or substituting any judgment in this cause. It is not even contended that any character of judgment was in fact entered. On the contrary, it is plain that no judgment was entered. Appellant filed a motion asking the court to enter a purported judgment nunc pro tunc, which he claims was authorized at a prior term, by . reason of some announcement supposed to have been made by the court to dismiss, or some threat to dismiss, the pending lawsuit. It is true, of course, that “the judgment of a court is what the court pronounces.” It is equally true that whether or not the court pronounced or declared any particular judgment or decision at any given time, or term of the court, is a question of fact to be determined as any other fact question; and “the question may become one of fact to be decided by the testimony of others, in which case the court may submit the issue of fact to a jury.” Tex.Jur. vol. 25, p. 441, and cases cited. The best evidence of such pronouncement is the formal decree necessary to give effect to it. Not only was no such decree entered, but the judge declined to order or approve any decree giving effect to the purported pronouncement, from which it may be implied that no such pronouncement was in fact made. The record and briefs in this case clearly show that this case was carefully and fairly tried, and the proper judgment entered in the court below. The contentions raised and the propositions asserted on this appeal by appellant relate to questions of procedure only; that is, he does not even suggest that this case was not fairly tried or that he was deprived of any right or privilege under the laws of the land. His sole contention is — in the last analysis— that this cause of action against him (and which was fairly prosecuted to judgment at a trial and before a court and jury, against noné of which he even complains) was, in the absence of all the parties or their attorneys, and even without his request, and for no good reason on earth, according to the facts in this record, dismissed by the trial court for want of prosecution. And we deem it proper to here again call attention to the fact that no lack of diligence was alleged or shown on the part of appellee or his counsel. On the contrary, the record affirmatively shows' that appellee’s attorneys had secured several settings of the case and were diligently seeking to bring it to trial. Furthermore, a review of all the testimony set forth in the record reveals that the appellee was falsely accused by appellant of stealing a cow to which he never at any time made any character of claim; that he was taken from his home in Bexar county by appellant and others — including an armed deputy sheriff — brought to San Antonio, threatened with charges of theft and “a trip to the penitentiary”; told if he could raise and pay appellant $50 for the alleged stolen cow he would not be prosecuted. - He was a man unlearned and inexperienced in matters of his legal rights. He was not advised by counsel while in [353] the hands of the deputy sheriff and appellant, and to avoid being placed in jail, and to be enabled to return to his wife, who was at the time ill and in a state of pregnancy at their farm home, he called his old friend, George W. Saunders, by telephone, and Saunders paid appellant the $50 demanded, and appellee was then released. No charge of theft or wrongdoing was ever filed against appellee by appellant concerning the matter. The testimony of numerous witnesses, both for appellee and appellant, shows conclusively that appellee never at any time claimed the cow which appellant accused him of stealing; that several times on occasion of his arrest and before several different people and groups, appellant charged him with stealing the cow and stated he would send appellee “over the road” for two years and collect $200 reward instead of $50 for the cow. Furthermore, this record does not definitely show that the cow even belonged to appellant. It is clear that it was a stray cow, grazing around the premises occupied by appellee, and, when the sons of appellant came to inspect the animal, they were advised by appellee where it -was located, and that appellee never at any time made any claim to it. This cause was tried in the lower court in two divisions or separate respects. In the first instance, on the pleadings and testimony directed to the fact question, as to whether or not the cause had theretofore been dismissed from the docket of the court, the trial in this respect was held on appellant’s motion to enter the claimed judgment, nunc pro tunc. The court, without the aid of a jury heard and determined the issue raised by such motion, and the evidence offered thereon, and found the facts against appellant’s contention. In the second place, after disposition of the case on the motion to enter judgment, as above indicated, the cause went to trial on the merits, before a jury, which was demanded by appellant. The jury then decided the questions of fact against appellant at the trial on the merits, and the court thereon entered the judgment here complained of. Appellant does not here assert that any error was committed in the trial of the case on the merits, but directs all of his complaints and assignments in this appeal against the alleged errors of the trial court in overruling his motion to have judgment entered, as above indicated, at the hearing on such motion, and then later putting him to the trial of the case on the merits. The record shows conclusively that ap-pellee had been greatly wronged and damaged by appellant, and without any reason or justification being shown for such conduct on the part of appellant. The case was fairly tried and disposed of on the merits ; and, once again, no complaint is made of such trial or its result by appellant. For this court to now set aside such verdict and judgment, and dismiss the cause from the docket, when it appears that it will be barred by the statute of limitation, is a serious matter. In our opinion such conclusion is not supported by the rules applicable to the questions here raised, when correctly applied to the facts of this case, nor by the best authority on the subject. Certainly it is plain that to permit the dismissal of this cause, under the facts, would plainly result in a great injustice which was righted in the trial court, at least to some extent. This court, in view of the record presented, should not disturb the judgment entered in the court below. All of appellant’s contentions and assignments as set forth on this appeal have been duly considered. None of them, in our opinion, are sufficient to warrant a reversal of this cause, and the judgment of the trial court is affirmed.