On Appellant’s Motion for Rehearing.
Reciting the grounds alleged by appellant for review, we said in our original opinion that: “On November 29, 1932, more than four years after its institution, the cause was dismissed fpr want of prosecution, which fact appeared, among other published court proceedings, in the Dallas Morning News of November 30, 1933; was read by petitioner’s manager, and neither knowing nor having notice of anything to the contrary, petitioner was led to believe, and did believe, that the cause had been abandoned by plaintiff, and finally disposed of; however, it appears that later, on verbal motion by plaintiff Hughes, the court set aside the order of dismissal and reinstated the cause, without either actual or constructive notice to petitioner.”
Commenting upon these allegations, we said: “It appears that the suit was dismissed for want of prosecution on November 29,1932, and while not decisive of the merits of the controversy, yet it did effectually put an end to the pending proceedings, and petitioner having no actual knowledge, was not, in our opinion, visited with constructive notice of the verbal motion made to set aside the order of dismissal, nor of the action of the court thereon. Morris v. National Cash Register Co. (Tex. Civ. App.) 44 S.W.(2d) 433.”
In a motion for rehearing, appellee challenged the correctness of all allegations in the bill of review in regard to the dismissal of the cause for want of prosecution and its reinstatement on verbal motion, in that, the record of the original cause failed to reveal such proceedings. We held that this criticism was well taken, as the supplemental transcript of the proceedings had in the original cause, failed to show that it had either been dismissed or reinstated; therefore, we withdrew from our opinion the recitation made in regard to this matter, but held that, even with these allegations eliminated, the petition for review stated a cause of action; therefore overruled appellee’s motion for rehearing.
We now have for consideration a motion by appellant to perfect the record and for rehearing. The motion is under oath and not controverted, alleging that it was understood in open court, at the oral argument, that the original suit was dismissed for want of prosecution on November 29, 1933, and thereafter was reinstated, as alleged by appellant in its bill of review, and while the supplemental transcript of the proceedings in the original suit did not contain the orders of dismissal and reinstatement, that as to the facts there was no controversy, and assuming that this was in the mind of the court, appellant did not challenge the correctness of appellee’s motion for rehearing on that point. There is attached to the'motion a certified copy of a nunc pro tune order of the trial court, showing that the original cause was in fact dismissed for want of prosecution on November 29, 1932, and thereafter was reinstated. So, in view of this situation,” we grant appellant’s motion to perfect the record, and will consider as a part thereof the accompanying certified copy of the order of court, therefore reiterate the language of our original opinion, eliminated on appellee’s motion for rehearing, as set out above, the same to constitute a part of our opinion that appellant may have the benefit of its allegations in regard to the dismissal of the original cause for want of prosecution, and the manner of its reinstatement.
Motion granted.