On Motion for Rehearing.
RANDOLPH, J.The motion for rehearing, filed by distinguished counsel who have come into the case since the rendition of the original opinion herein, presents a “fundamental” error for our consideration which they charge was overlooked by us in our original investigation and report on this case. In reply we wish to say that counsel are mistaken in this statement, but they were doubtless lead to infer this from the fact that we did not comment on the question in our first opinion, for the reason that we did not view the question seriously, and were of the opinion that it was not seriously urged by former counsel.
Since carefully investigating the authorities presented in support of the motion by defendant in error, we are confirmed in our opinion as to the lack of authority supporting their contention; but in view of the urgency and insistence of present counsel, as shown in the able aigument filed by them, we now feel that we were mistaken in thinking that the contention was not seriously intended, and will review the authorities cited by them, as well as present such as we think ' sustain our former report on the case.
Having held that the plaintiff’s petition alleged a cause of actionable negligence, the question is now presented to us that there is a fundamental error in our judgment in this: The case was filed in the district court of Johnson county. A term of that court in the year 1919 began on the first Monday in May, and by law could not continue longer than Saturday before the first Monday in July. At this May, 1919, term of the court the defendant presented a general demurrer and special demurrers to the plaintiff’s petition, which general demurrer was ’ heard and sustained by the court. It is contended in the motion, for rehearing that the court thereupon proceeded to and'did render a final judgment in the case. That judgment as rendered was in words as follows:
“On the above day and date appeared the plaintiff and the defendant, by their attorneys, and then came on to be. called and heard by the court the general demurrer and special exceptions of the defendant to the plaintiff’s amended petition, and the court having heard the same read, and having heard the argument thereto, is of the opinion that the defendant’s general demurrer to the plaintiff’s amended petition, is well taken and should be and the same is hereby in all things sustained. It is therefore ordered, adjudged and decreed by the court that the general, demurrer of the defendant to the plaintiff’s amended petition be and the same is hereby in all things sustained, and that the plaintiff take nothing by this suit *1111and pay all costs of the suit and the defendant go hence without day, to which action of the court the plaintiff in open court excepted, and aslcs leave of the court to amend his amended petition, and the court granted unto the plaintiff leave to make and file an amendment to his amended petition herein.”
It does not appear from the record that any further steps were taken or any other orders entered by the court at that term of the court in reference to the case. At the next term of the court leave was again granted to both parties to amend in the case, and at that term plaintiff filed his first amended petition. At that term, also, on November 25, 1919, the defendant’s general demurrer addressed to this petition was sustained, and, the plaintiff declining to amend, the court dismissed the cause from the docket, and^ from that judgment the appeal was taken,* which is now before this court.
Defendant in error’s position before the court is here shown by the following propositions copied from its motion:
"These proceedings all appearing of record and being shown by the transcript, it is apparent that after the rendition of the first final judgment the case was no longer a pending cause in the district court. With that judgment final and in the defendant’s favor, and having never been appealed from, reversed, or set aside, the district court was without authority to render any different judgment at a later term. Accordingly the later judgment, also in the defendant’s favor, was, under any view, a correct judgment, and therefore must stand. In fact, after the rendition of the first judgment the district court was without any power to proceed in the cause.”
To sustain this proposition counsel for defendant in error cite a number of authorities 'which we shall review, attempting to set out the actual point or points decided by the court in each case, for the purpose of ascertaining whether or not the particular case is decisive of the question before this court.
In the case, of Staacke Bros. v. Walker & Chilcoat (Tex. Civ. App.) 73 S. W. 409, a partnership composed of George B. Walker and M. Benjamin Chileoat, suit in justice court, citation was served on one of the partners, George B. Walker, but the record failed to show service upon the other partner, Chil-eoat. A trial of the case was had, and judgment was entered as follows:
“This day came the parties by their attorneys and thereupon came a jury of good and lawful men, who, being duly impaneled and sworn, upon their oath do say they ‘find for defendant.’ It is therefore ordered and adjudged by the court that plaintiffs, Staacke Bros., take nothing by this verdict, and that the defendants, Walker & Chileoat, do have and recover of said plaintiffs, Staacke Bros., all costs in this behalf expended, and that they have their execution for the' same.”
Upon appeal to the county court by Staacke Bros, the defendants moved in that court to dismiss the appeal on the following grounds: (1) That judgment was not final, in that it does not dispose of all the parties. (2) The judgment does not contain the essentials of a judgment for the defendant, in that it fails to state that plaintiffs take nothing by their suit and to state or adjudge that “defendants go hence without day.” The county court sustained the motion and dismissed the ease. The Court of Civil Appeals, passing upon these grounds for the county court’s action, holds: (1) In suits against a partnership, service on one partner only is sufficient to sustain a judgment against the firm, under which the interest of all its members in the property of the partnership and the separate property of the individual served may be subjected to the judgment debt of the partnership; and, having arrived at this conclusion, that if such judgment in favor of plaintiffs would have been final, if so rendered upon such service, * one rendered against them under the same service would also be final upon the same issues. It is further held that upon such a verdict judgment could have only been rendered against the plaintiff and in favor of the defendants for costs; also that the use of the word “verdict” in the judgment was manifestly a clerical error, and was equivalent to the use of the word “suit,” and that the failure of the judgment to state the formula “that defendant go hence without day” does not render the judgment any less final than it would have been if used.
15 R. C. L. p. 1113, § 44, relates to the question of judicial knowledge by the court, and is cited as authority for the proposition that the court should take notice of the terms of the court and time covered by them.
Freeman on Judgments, § 12, is as follows:
“Both judgments and decrees, considered in relation to the jurisdiction in which they were rendered, are either foreign or domestic. Considered with regard to their effect in putting an end to an action, they are either final or interlocutory. Any judgment or decree, leaving some further action to be done by the court, before the rights of the parties are determined, and not putting an end to the action in which it is entered, is interlocutory; but, if it so completely fixes the rights of the parties that the court has nothing further to do in the action, then it is final. A final judgment or decree may only dispose of the action, leaving the plaintiff at liberty to commence another suit in the same cause as in case of a dismissal or voluntary nonsuit by the plaintiff, or it may, besides disposing of the action, determine all the rights involved in the suit, and become a bar to all other suits between the same parties in reference to the same subject-matter.”
Freeman on Judgments, § 16:
“A judgment that the defendant go hence and that he recover his costs, etc., though not very formal, is a good final judgment, because no further action can be taken while it is in force.”
*1112In the case of Catherine Sydec v. Duran, 2 Posey, Unrep. Cas. 304, the following rule is made:
“The judgment rendered by the court was a final judgment, to the effect ‘that the plaintiffs take nothing by their suit, and that the defendants go hence without day,’ and it proceeded to dispose of the costs of the suit. This left nothing further to be adjudicated, and, whether the judgment was erroneous or not in any particular, it was nevertheless a final judgment. It was a complete disposition as to all the parties to the suit and as to all the matters in controversy under the pleadings.”
A judgment reciting that the defendant’s demurrers, including a general demurrer, were sustained and the case dismissed, is a final judgment. Jefferson v. Scott (Tex. Civ. App.) 135 S. W. 705. In that case, however, when the trial court sustained the demurrer to plaintiff’s first amended petition, it does not appear that any leave to amend was asked, but that plaintiff insisted that he had the right to a trial on the merits, notwithstanding the ruling of the court on the exceptions, which the court denied.
Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100, was a case where, on the failure of the party or his attorney to appear and prosecute the suit, if was dismissed by the court, with this observation:
“The judgment of dismissal at the former term was a final judgment, and it is a well-settled rule of practice in the state that, after the adjournment of the term at which such a judgment is rendered, it is no longer subject to the control of the trial court.”
In the case of Ætna Insurance Co. v. Dancer, 215 S. W. 963, the jury had returned a verdict in favor of the defendant. The court noted on the docket, “Judgment for defendant on verdict of jury,” but no judgment was entered in the minutes of the court. Plaintiff filed a motion for a new trial, which was not acted on at that term. On agreement of the parties, judgment nunc pro. tune was entered at the next term of court, and plaintiff thereupon immediately filed a second motion for a new trial, which was granted by the court over the objection of defendant. Upon this condition of the record it was held by the Commission of Appeals that the entry on the judge’s docket was a final judgment, and that the trial court was without jurisdiction to render the last judgment; that, the first judgment being final at the term at which it was rendered and having in no way been set aside at that term, the court was without power to determine the motion.
From Bomar v. Parker, 68 Tex. 440, 4 S. W. 607, we quote:
“It seems to us, however, that there is another objection to appellant’s cross-bill, which is fatal to his case. It is an original action, it is true, but one to which attaches the substantial condition of a motion for a new trial. Such a suit cannot be maintained without showing that the complainant has been prevented from making his motion during the time of which the judgment sought to be set aside was rendered. Hence, if the motion be made and abandoned, it is fatal to a new suit when brought for the same purpose. We think, therefore, that a party who institutes an original action for a new trial occupies no better position than one who makes his motion during the term at which the judgment is rendered, and that he should be held to the diligence of prosecuting his action to a. final determination. If a demurrer to his petition be sustained, and he fail either to amend or appeal, he should be held debarred of a second action. Since he can only maintain his suit by showing that he has been guilty of no laches on the former trial or in making his motion to set aside the judgment, none 'should be tolerated after the suit for a new trial is brought. We have found po authority upon the point, and the question is of such rare occurrence it is probable that none exists; but in the following cases an analogous principle seems to have heen maintained: Smith v. Whitmore, 1 Hemming & Miller, 576; Jones v. Burnett, 1 Brown’s Par. Cases, 411.”
In the case of Winter v. Texas Land & Loan Co., 54 S. W. 803, a Court of Civil Appeals decision, which was later passed on by the Supreme Court and will be commented on hereafter, it appeared that at the general term of the district court that court sustained a demurrer to the petition, and entered the following notation on his docket:
“Exceptions of defendants to plaintiff’s petition sustained. Plaintiff excepts.”
There was no attempt to amend the petition, and no appeal taken from the judgment. Upon this state of the record the Court of Civil Appeals held that the entry so made was a final judgment.
In Kelley v. Gibbs, 84 Tex. 144, 19 S. W. 380, 563, it is held that the court will in a garnishment proceeding take notice of the proceedings in the main suit. Also in the case of Jeffries v. Smith et al., 31 Tex. Civ. App. 582, 73 S. W. 48, it is held that, the garnishment proceeding being ancillary to the main suit in which judgment had been rendered, the court was required to take judicial knowledge of the existence and terms of the original judgment.
In the case of Coleman v. Zapp et al., 105 Tex. 493, 151 S. W. 1040, which was a proceeding by scire facias, instituted by defendants in error in the year 1909 to have entered nunc pro tunc and to revive a judgment rendered in 1903 in their favor against the plaintiff in error, in connection with which proceedings an attachment was sued out and levied, the following notation was made by the trial judge upon his docket:
“ ‘4/8/03. Judgment for plaintiff perpetuating the injunction heretofore issued, and for defendants for balance due on the judgment sued on by them, viz. $1,823, against Kate Mc-Chesney, alias Winnie Clark, and her husband *1113so far as he may be liable, and for intervener against both plaintiffs for amount of its debt, etc., to which defendants except and give notice of appeal.’ In the entry of the judgment upon the minutes, however, that part of it which awarded a recovery in favor of these defendants in error against the plaintiff in error of $1,823 was omitted.”
The contention by plaintiff in error in that case that the proceeding was an action to correct a judgment, and therefore barred by limitation provided in article 3358, Rev. Stats.. 1895, is answered1 by Judge Phillips as follows:
“The solution of this question lies primarily in the substantial distinction which exists between the rendition and the, entry of a judgment, and between the exercise of powers inherent in a court and those which depend for their operation upon the petition of parties. The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded. The failure of the minute entry to correctly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwithstanding its imperfect record. Ereeman on Judgments, § 38. Hence it is that from th'e earliest times the power of correcting or amending their records, by nunc pro tunc entry, so. as to faithfully recite their action, has been possessed and exercised by the courts as an inherent right, independent of any statute, and, in the absence of express provision, unaffected by limitation.”
If the order entered by the trial court in this cause at its May term, 1919, had ended with the words “that the plaintiff take nothing by this suit and pay all costs of the suit and the defendant go hence without day, to which action of the court the plaintiff in open court excepted,” and the plaintiff had not appealed from that order, clearly such order would have been a final judgment, and the Supreme Court would be without jurisdiction herein. But the further entry, “and asks leave of this court to amend his amended petition, and the court granted unto the plaintiff leave to make and file an amendment to his amended petition herein,” presents an entirely different question, and upon this question we now present our rulings and authorities sustaining same.
Article 1910, Vernon’s Texas Statutes, provides as follows:
“Pleas to the jurisdiction, pleas in abatement, and other dilatory pleas and demurrers, not involving the merits of the case, shall be determined during the term at which they are filed, if the business of the court will permit.”
Rules 24 and 25 for District and County Courts, 67 S. W. xxii, also provide:
“All dilatory pleas, and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of parties with the consent of the court; and all such pleas and motions shall be first called and disposed of before the main issue on the merits is tried.
“All motions which go to the merits of the case, and all exceptions, general and special, which relate to the substance or to the form of the pleadings, shall be decided at the first term of the court, when the case is called in the regular order for trial on the docket, if reached, whether there be an announcement on the facts or not, unless passed by agreement of parties with the consent of the court.”
Article 1825 provides as follows:
“Such leave shall be given, and such amendment filed, for a reasonable time before the case is called for trial, so as not to operate as a surprise to the opposite party.”
It will be observed that these articles of the statute and the rules quoted only require the exception to be decided at the term of the court at which they are filed, but they also contain the limitation that they shall be called to the attention of the court, and “if reached,” whether there be an announcement on the facts or not, unless passed by agreement of the parties, and further, “if'the business of the court will permit.” In this case the demurrers were considered and acted on by the court at the first term, and sustained, and the question is: Did the court by his order intend to require that this amendment should be filed at that term? — the statutes and rules being silent as to any such requirement. If so, there is nothing in the order itself or in the record containing any such requirement. This being true, we will consider, first, the other proceedings to assist in determining what the language of the judgment imports, and what was the intention of the court in entering same; and, second, we will consider the judgment as entered, and to assist in determining these questions we quote from the following authorities:
T|ie order of the court entered at the November term, 1919, to our minds is conclusive of his intention in entering the first judgment. This order we set out in full:
“On this the 25th day of November, 1919, came the parties plaintiff and defendant, by their attorneys, and then came on to be heard the demurrers of the defendant to the plaintiff’s amended original petition, all parties having announced ready on such demurrers, and ⅛⅜ court having considered the pleadings of the plaintiffs and the demurrers of the defendant to such amended petition, it is of the opinion that the general demurrers should be sustainedi to the plaintiff’s first amended original petition. It is therefore ordered, adjudged, and decreed by the court that the general demurrer of the defendant, the Texas Power & Light Company, a corporation, be and the same is hereby in all things sustained to the plaintiff’s amended petition, as the said demurrers have heretofore at two previous terms been considered
*1114and sustained by the court,' and leave granted to amend plaintiff’s petition, and plaintiff in amending has substantially alleged the same facts each time as cause of action herein. It is therefore ordered, adjudged, and decreed by the court that plaintiff, H. D. McCoy, take and recover nothing in this case against the defendant, the Texas Power & Light Company, and that the defendant go hence without day, and recover from the plaintiff, H. D. McCoy, all costs in this behalf expended; the plaintiff having declined to amend further than as set out in plaintiff’s first amended petition. It is further ordered that execution issue in favor of the defendant against the plaintiff for cost, and in favor of the officers of the court against each party for the costs by each herein incurred and expended. The plaintiff declines to amend his first amended petition filed herein, and in open court excepts to the above judgment of the court in sustaining the defendant’s general demurrers to plaintiff’s first amended petition, and 5n> open court gives notice of appeal to our Court of Civil Appeals for the Second Supreme Judicial District of Texas holding sessions at Fort Worth, Texas.”
In the first place, if we should say that the first judgment is rendered ambiguous by its contradictory terms, we, have a clear statement from the trial court as to his intentions in rendering same, by the language of the second judgment, in which it is recited that the plaintiff had theretofore been granted leave to amend and that the order is entered sustaining the exceptions and reciting that the—
“plaintiff, H. D. McCoy, take and recover nothing in this case against the defendant, Texas Power & Light Company, and that the defendant go hence without day, and recover from the plaintiff, H. D. McCoy, all costs in this behalf expended; the plaintiff having declined to amend further than as set out in plaintiff’s first amended petition.”
If the court had intended the first order to be a final judgment, he would not have given leave to plaintiff to amend, and would not in the second-order have recognized his right at that "time to amend.
Notwithstanding the language of the judgment, that the plaintiff take nothing by his suit and go hence with his costs, the right given him to amend takes away from the judgment its finality.
“A judgment which is not final is called ‘interlocutory.’ That is, an interlocutory judgment is one which determines some preliminary or subordinate point or plea, or settles some step, question,.or default arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of court.” 1 Black on Judgments, § 21.
“A final judgment is one which determines all the issues involved in the cause. The decision on,an issue of law which does not put the case out of court is not of this character.” 1 Black on Judgments, § 24.
•On the right to amend before final-action of the court the Supreme Court in the case of Jennings v. Moss, 4 Tex. 453, holds:
“If, when the petition of the plaintiff was adjudged insufficient, he had asked leave to amend, that right would, doubtless, have been accorded to him, or, if refused, a remedy would have been afforded by appeal. The statutory prohibition of amendment after the parties have announced themselves ready for trial must be understood only of an announcement of readiness for trial upon the issues of fact, and not upon the issues of law, which must first be disposed of. Any other construction would render nugatory the provision of the statute, which secures the right of amendment.”
In the case of Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39, the same case cited by defendant, in error as being decided by the Court of Civil Appeals, the Supreme Court, overruling the Court of Civil Appeals, holds as follows:
“If the proposition that the judgment upon demurrer was a final adjudication of the cause were true, it would undoubtedly' follow that, after the adjournment of the term at which it was rendered, the court would have had no such jurisdiction over the parties or the subject-matter of that suit as to empower it to .render, upon the issues of that cause, any further judgment affecting them. It is equally true that a failure to enter the order or judgment of the court upon the minutes does not change the attitude of the case, for, when the controversy arose, it was unquestionably competent for the court to supply the omission and to make such entry nunc pro tunc as would properly represent the action previously taken. We shall therefore treat the case as if the proper entry upon the minutes had been made in January, 1895. We cannot agree, however, to the proposition that the action then taken by the court was a final disposition of the case or of any issue in it as to any party to it. The entry * made was nothing more than the recorded expression of the ruling of the court sustaining the exceptions. If the dismissal of the case should have logically followed from the ruling made, it was nevertheless essential to the finality of the action of the court that it should have declared such consequence by the judgment pronounced. It is qot sufficient to constitute a final judgment that the court make a ruling which should logically lead to a final disposition of the cause, but the consequence of the ruling to the parties must be also declared. One of the accepted definitions of a final judgment is that" it is ‘the awarding of the judicial consequences which the law attaches to facts.’ Hanks v. Thompson, 5 Texas, 6; Bradshaw v. Davis, 8 Texas, 344; Warren v. Shuman, 5 Texas, 449. Should it be conceded, therefore, as contended by defendant in error, that a dismissal of the cause or a final judgment in favor of Mrs. Winter, at least, properly followed from the ruling on exceptions, it cannot be admitted that the court, by its judgment, so declared and adjudicated. It is not enough to make a final judgment that we can see that the court ought to have rendered one.”
*1115And further:
“What the court did must have amounted to a final determination of the rights of the parties resulting from the ruling made. In the case of Andrews v. Richardson, 21 Texas, 295, an order was entered that if the plaintiff should not amend his petition by the first day of the term next succeeding the order, the case should be dismissed. The plaintiff did not amend his petition by the given time, but did amend later, and, after shell amendment and the taking of various other steps in the cause, the defendant moved to dismiss because of noncompliance with the order, and the motion was sustained. The Supreme Court, in passing upon this action, said: ‘The motion assumed that the failure to comply with the order operated a dis-mission of the cause, but this was manifestly a mistake. It required a final judgment, from which an appeal would lie, to effect such dis-mission. No such judgment was rendered; the cause was not dismissed.’ This authority recognizes the proposition, which, in fact, runs through all out decisions on the subject, that in order to constitute a final judgment dismissing a cause, there must be an express adjudication in substance to that effect. But it cannot even be conceded that a dismissal of the plaintiff’s action necessarily followed from the ruling announced by the court upon exceptions. The plaintiff, notwithstanding such ruling, had the right to amend its pleadings so long as the case remained in court. If the plaintiff declined to amend or failed to ask leave to amend, the court, if it considered that the ruling on exceptions established that there was no cause of action sufficiently averred in the petition, might have dismissed the case; hut the dismissal, in such cases, ‘is the immediate consequence rather of the failure to amend than of the judgment upon demurrer.’ Hughes v. Lane, 25 Texas, 366. The entry made by the judge does not show either that the plaintiff did or did not ask leave to amend, but no action was taken to cut off the right of amendment at some future time. The case was thus left in suspense depending upon such order as the court might thereafter make.”
It occurs to us that the order entered by the court, that the plaintiff take nothing by his suit, was an inadvertent expression, which was clearly nullified by the leave to amend. However, if there is any ambiguity in the judgment by reason of its contradictory terms, we are authorized to put a common-sense construction on the language as a whole:
“The rule for construction of ambiguous judgments is clearly stated by the Supreme Court of Kansas in the following language: Wherever the language of a judgment is so obscure as not to clearly express the exact determination of the court; reference may be had to the pleadings, and other proceedings; and if, with the light thus thrown upon such entry, its obscurity , is dispelled, and its intended significance made apparent, the judgment will be upheld and carried into effect in the same manner as though its meaning and intent were made clear by its own terms.” 1 Black on Judgments, § 123.
If the judgment is ambiguous, the record in the case, including the pleadings, are admissible' to aid the court in construing them. Texas Savings-Loan Association v. Banker, 26 Tex. Civ. App. 107, 61 S. W. 724, approved in 94 Tex. 701, 63 S. W. xiv (no opinion).
The business of the court, not having been disposed of, is presumed to have been passed to the next term of court. That part of the business required to be disposed of at that term, that is, the consideration and determination of the demurrers, having been acted on by the court, and the court’s order not fixing any time in which the amendment was to be filed, and no further action having been taken by the court, it is to be presumed the case went over as unfinished business.
Article 1919, Yernon’s Statutes, provides:
“If from any cause the court shall not be held at the time prescribed by law, or if the business before the court be not determined before the adjournment thereof, such business, of whatsoever náture, remaining undetermined, shall stand continued until the next succeeding term of the court.”
The clear intent of the court being that the demurrers should be sustained subject to the plaintiff’s right to amend, we hold that there was no final judgment entered at the May term of court, and that the trial court did not err in considering the first amended petition as having been properly filed.
We therefore recommend that the motion for rehearing be overruled, and that the cause be reversed and remanded for trial, as originally recommended.