— It is unnecessary for us in the present case to decide as to the validity of the citation served upon Dyer, or as to whether or not the filing of a motion for security for costs, or of a notice and interrogatories to take the depositions of a witness, amount to such an appearance by a defendant as will authorize a judgment by default.
The application for judgment nunc pro tune was based upon the ground that the district judge erred in quashing the citation, and holding the defendant was not in court in such manner that a judgment by default could not be taken against him. Admitting for the purposes of this appeal that the judge did err in such ruling, it was an error or incorrect action in a matter of law which cannot be revised or reversed at a subsequent term upon a motion to enter a different judgment nunc pro tune.
It is well settled that judicial'errors in entering up an order at-a former term which was not sanctioned by law, or the failure to enter one which should have been rendered but for an incorrect ruling of the court upon points made before it, cannot be remedied by a judgment to the contrary ordered nune pro tunc. Lorance v. Marchbanks, 2 Law Review, 44; Freeman on Judgments, §§ 68, 70; Chambers v. Hodges, 3 Tex., 517.
The court could not render a judgment by default against Dyer whilst the motion to quash was pending and urged by his counsel, unless it held that an appearance was effected by some action on the part of the defendant.
Having once held that the citation was invalid, and that no appearance had taken place, and that a judgment by default could not be rendered, it had ho authority at a subsequent term to reverse its decision, overrule the motion to quash, pronounce a judgment by default, and execute a writ of inquiry.
*245For errors committed in such matters the defeated party has his remedy by appeal to this court after final judgment, and if, by the death of a defendant in an action dying' with him, a plaintiff is deprived of such remedy, it is but one of the risks attending such suits. He certainly cannot, by reviving the abated action against adminstrators, have the issue tried as to whether or not he was entitled to a judgment against the deceased in his life-time, and thus cause them to defend ‘ against a claim of damages for a tort, the right to which ceased with his death.
This is sufficient to dispose of the appeal. It may be added, however, that if the judgment by default had been granted, and the defendant had died thereafter and before writ of inquiry was executed, it is, to say the least, doubtful as to the power of the court to execute the writ. It is not like the case of a death occurring between verdict and judgment. A verdict fully determines the rights of the parties to the suit, and a judgment in accordance with it follows as a matter of course. But a judgment by default when writ of inquiry is awarded leaves the" amount of damages undetermined. The execution of this writ is not in all respects- an ex parte proceeding. The defendant may appear and by evidence reduce the amount of damages claimed by the plaintiff; he may raise objections to plaintiff’s right to recover .the full amount of his claim, and take exceptions to the decision of the judge. Sayles’ Prac., § 627.
The death of the defendant between the date of the default and the execution of the writ leaves the cause in a partially finished condition. An interlocutory judgment has been entered up, and a final judgment is held in abeyance, not by the laches of the court or its officers, but by permission of the statute itself.
In this respect the case differs from that of Mitchell v. Overman, 103 H. S., 62. There the judgment was pro confesso, and the delay in entering the decree arose from the tardiness of the judge in making up his conclusions. Besides, after order taking a bill as confessed, the proceedings are strictly ex parte, and the defendant cannot be heard except at the demand of his adversary.
Mr. Freeman, in his work on Judgments, says, § 68: “In every case, to entitle the applicant to have his judgment entered nune pro tune on account of the death of one of the parties, the action must, at the time of such death, have been ready for the rendition of the final judgment.” In this case it would not have been ready, because a trial had still to take place in which the defendant could in some measure participate, and partially, at least, control the demand of ■the plaintiff. The same writer also says:. “ It is not sufficient that *246an interlocutory judgment had' been "pronounced and proceedings were pending in pursuance of a writ of inquiry.” Id., § 59.
To fix the liability of a defendant in an action which does not survive, =so that it may be enforced after death against his administrators, the claim should have ripened into a final judgment for a certain ascertained amount, and not be in such a condition that he may appear and partially defeat the demand. Desisting a judgment for the amount of damages claimed is a part of the defense to ail such suits, and this can take place upon a writ of inquiry.
The administrators cannot be compelled to defend against an action for a tort committed by the deceased, and a right of action for which died with him; yet appellant would have forced them so to do, if his motion had been granted.
The court did not err in refusing the motion,- and the judgment is affirmed.
Affirmed.
[Opinion delivered February 29, 1884.]