On Motion for Eehearing.
HAWKINS, J.Appellants move for a rehearing, insisting only that we did not properly dispose of their point made that they were not notified of the state’s motion to enter judgment nunc pro tunc, prior to such entry. We probably should have discussed this matter at more length, and now do so in the light of appellant’s motion and the authorities cited. We were in error in our original opinion in saying that Midland county has only two terms of district court each year, but this mistake does not affect the disposition of the case.
We first again call attention to the fact that neither by motion for new trial, nor by suit to vacate or set aside the judgment as entered nunc pro tunc, was there any direct attack on said judgment; nor does this record contain any showing by affidavit or otherwise that appellants and their attorneys were not present in court with full knowledge and consenting to such judgment entry, all of which, in the absence of some showing to the contrary, is presumed to be true. £>ecs. 356-375, E. O. L., Vol. 15.
We have carefully examined all of the authorities cited in appellant’s motion, and do not think them to support the contention here made. Conceding that rules of civil statutes and procedure govern, we note that article 2228, Kev. Civ. Stat., cited and relied upon by appellants, relates solely to amendments and changes in judgments theretofore entered, and the same is true of authorities cited by him. There seems to be a fundamental difference between the character of procedure in the instant case, and that referred to in said statute and the authorities cited. In the ease before us we have a judgment which was for the first time entered of record on October 3, 1931, and no complaint being even now made of its absolute correctness in form and substance. There is neither pretense nor assertion that the judgment then entered is variant from, or in any way not, the judgment actually rendered at a prior term on February 19, 1931. There is not a suggestion in the record before us that had appellants been present, if in fact they were not, they would have had any defense, or that they would or could have had *310a different judgmént entered had they been fully apprised, or had they been present.
How different in principle the statute relied on and the authorities. In the Hamilton Case (Tex. Civ. App.) 225 S. W. 69, which seems to be the leading ease cited by appellants, an agreed judgment had been entered in accordance with a written agreement on file. The plaintiff in the case had left the state. A year or two later, upon a motion held to be without tootice, the judgment was amended and changed, materially altering the rights of the parties, and this, upon the authority of article 2228, supra, was properly held erroneous. Similar states of facts appear in the other authorities cited, each resting upon an effort to subsequently change without notice a prior judgment which had been entered upon a trial. Berry et al. v. State, 101 Tex. Cr. R. 512, 276 S. W. 295; Wilkes et al. v. State, 100 Tex. Cr. R. 577, 272 S. W. 194. In each of the cases the complaint of erroneous procedure was necessarily based upon the fact that, as a result of the action complained of without notice, an injury had resulted. There is no such claim in the instant situation.
The record before us shows that these appellants were cited in January, 1931, to appear at the February term following, and show cause why judgment final should not be entered against them. At no time thereafter did they answer even denying generally their liability. The only answer made at all was one dated of February 2, 1931, .in which they requested that they be given the remainder of that term of court to bring in their principal, and further stating that “they were under the impression” that he had made a new bond to take the place “of the bond entered into by them.” Appellants make no claim that the court granted their request, and thereby misled them to their harm, but for which they could have set up a defense against the judgment which was actually rendered op February 19, 1931, though not entered of record until a subsequent term of court. By their written request for time to produce their principal we have here then their acknowledgment of the execution of such bond, their evidence of the fact that they had been cited to appear, and knew such fact. They were in court and subject to judgment without further notice from the time of the service of the citation upon them in January until judgment was finally entered, and made no effort .to deny liability, or to set up any defense to the day of the actual entry of the judgment in October, 1931. As far as they or their rights are concerned, if the court had entered judgment against them originally, without. further notice, as of the date same was entered at the October term, they had no cause of complaint, and the judgment would have been, binding.
It is appellants’ further contention that under the provisions of article 2291, Tex, Civ. St. (1925), relating generally to motions and notice thereof, they were entitled to notice -of the state’s motion to have judgment nunc pro tunc entered at a subsequent term of the court, and that the agreement on file is sufficient to show affirmatively that no notice was served on them. The present writer is inclined to think the agreement does show that no notice of the state’s motion for entry of the judgment nunc pro tunc was issued or served on appellants. Waiving for the time the fact that appellants do not, except inferentially, deny actual notice and presence in court, and assuming that they in fact had no notice of the entry of the judgment on October 3d, we have the peculiar situation of parties defendant to a suit who had been duly and regularly cited, who have never denied liability, or filed any answer which could be so construed, coming into a court of equity and asking that they be given relief against a judgment of the court having jurisdiction, without any averment that they had at the time the judgment was rendered or entered any defense, and in the face of a record showing that they had none. Equity will not move to an idle accomplishment, nor set aside a judgment just and right under the record, upon a showing such as is here revealed. Brown et al. v. Clippinger, 113 Tex. 364, 256 S. W. 254.
The motion for rehearing is overruled.