(dissenting).
I respectfully dissent.
I disagree with the holding of the majority that the Relator has carried his burden of showing that the nunc pro tunc judgment was an attempt to correct a judicial error in the prior judgment after same had become final.
Rule 329b1 does not prohibit a judge from rendering at any time a nunc pro tunc judgment to make the record of the court reflect the judgment actually rendered. In other words, a clerical error in the record of the court may be corrected by a nunc pro tunc judgment even after the judgment becomes final by operation of Rule 329b.2 In order for this Court to issue a writ of mandamus directing Judge Snell to set aside this nunc pro tunc judgment, it must be evident from the record that the nunc pro tunc judgment was not the correction of a clerical error in the record of the court.
In the alternative, Respondent’s Motion to Correct Judgment alleged clerical error. A hearing was conducted on that motion. At that hearing there were two vital issues of fact:
(1) Whether or not a judgment had been rendered before the March 29, 1971 draft of judgment.
(2) If so, whether or not the March 29 draft correctly stated the provisions of that rendered judgment.
See McDonald, Texas Civil Practice, V. 4, § 17.07.2 and authorities cited therein.
At such a hearing, the court is authorized to hear evidence and to make findings based on that evidence and on his own recollection. The State v. Womack, 17 Tex. 237 (1856).
The judge filed no findings of fact or conclusions of law; apparently none was requested. The nunc pro tunc judgment, January 5, 1972, recited no fact finding. No statement of facts relating to this hearing was filed. In the absence of such a record of the lower court’s fact findings, this Court must presume findings in support of the judgment, to-wit: the March 29 written draft erroneously stated the provisions of an orally rendered judgment. And in the absence of a statement of facts, this Court must presume that there was evidence at the hearing to support that implied finding necessary for the rendition of a valid nunc pro tunc judgment. Fort Worth & D. C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25 (1904), S. W. Slayden & Co. v. Palmo, 90 S.W. 908, affirmed 100 Tex. 13, 92 S.W. 796 (1906), Kostura v. Kostura, 469 S.W.2d 196 (Tex.Civ.App. 1971, no writ). See Rule 296.
The majority cites Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28 (Tex.1971), Finlay v. Jones, 435 S.W.2d 136 (Tex.1968), Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.1970), and Lone Star Cement Corp. v. Fair, 467 S.W.2d 402 (Tex.1971), as cases in which this Court conditionally is*188sued the writ to direct the setting aside of void nunc pro tunc judgments. In those cases, the nunc pro tunc judgments recited the fact findings of the court. With such records of the fact findings, the Rela-tors in those cases were able to show that the lower courts erred in their application of the law to the facts. As noted earlier, the nunc pro tunc judgment in this case recited no fact finding.
The majority also cites McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971), McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), Buttery v. Betts, 422 S.W.2d 149 (Tex.1968), and Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). Each of those cases involved a court’s improper attempt to affect a judgment after the judgment had become final under Rule 329b; however, it does not appear that in any of those cases the lower court’s action was predicated upon the correction of a clerical error by nunc pro tunc judgment pursuant to Rule 316. Therefore, those decisions are not in point because they did not involve a finding on a dispute as to clerical error, i. e., that finding which is necessarily made in a nunc pro tunc judgment case.
Relying on Rule 419, Rule 491 and Rule 496,3 the majority holds in effect that on application for writ of mandamus the judges of this Court may find the facts based on the uncontroverted allegations contained in Relator’s verified application in this Court and the certified copy of the docket sheet attached thereto. It was stated in City of Caldwell v. Schumacher, 204 S.W.2d 471 (Tex.Civ.App.1947, reversed on other grounds, 146 Tex. 265, 206 S.W.2d 243), that “the purpose of the Rule that any statement made by appellant in his original brief as to the facts or the record may be accepted as correct, unless challenged by opposing party, is to enable appellant to make a short statement of matters concerning which there is no dispute and to relieve the appellate court of any duty of briefing a case for appellee.”
It is apparent to this writer that the Rule was not adopted to allow a reviewing court, in the absence of a statement of facts, to find vital facts in contradiction to those impliedly found by a lower court. In any event, I believe that the statement from Relator’s brief quoted by the majority was sufficiently challenged by Respondent in his brief so as to avoid the effect given by the majority to Rule 419. The majority accepts as correct Relator’s statement that Judge Snell made no pronouncement when the jury returned its verdict.4 Respondent stated at page 3 of his brief •
“The whole point of this matter is to show that such action as was followed by Respondent Judge John Snell, Jr., was at no time ever adjudicated, and as pointed out in Respondent’s Motion to Correct Judgment . . . the judgment, if corrected would not change the status of the parties . . . but only to show the proper judgment rendered.” (Emphasis added).
That statement could mean that Respondent’s contention, in direct opposition to Relator’s contention which the majority accepts as correct, is that the actual judgment rendered by the court was not embodied in the March 29 draft. Although the docket sheet is evidentiary, it is not conclusive, and in the absence of a record of all the evidence it does not overcome the presumption in favor of Judge Snell’s action.
Respondent pleaded before the lower court that the fence provision in the March 29 draft was a clerical error. From evidence produced at the hearing and/or the Judge’s recollection, facts were found from *189which it was determined that a nunc pro tunc judgment pursuant to Rule 316 was proper. In the absence of a statement of facts, and in the absence of a record of the lower court’s findings, this Court should indulge every presumption in support of this nunc pro tunc judgment. The majority assumes away the factual dispute on clerical error, and grants the relief sought just because the language of the nunc pro tunc judgment is different from the language of the March 29 draft of judgment. In my view, we do not reach the question of law posed by the variance in the language of the two drafts, i. e., whether or not the error was judicial or clerical, because of the presumption that the facts impliedly found support Judge Snell’s conclusion that it was clerical error.
Because the Relator has failed to carry the burden of showing that Judge Snell did not properly correct a clerical error, I would deny the petition for mandamus.
. All references to Rules are to the Texas Rules of Civil Procedure. Rule 329b determines the time at which a judgment becomes final. The nunc pro tunc judgment was signed at a time when a judgment rendered on March 29, 1971 would have been a final judgment under Rule 329b.
. See Rules 316 and 317 pertaining to the correction of clerical error.
. Rule 419 provides: “Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.” Rule 491 makes Rule 419 applicable to cases in the Supreme Court. Rule 496 directs compliance in this Court with the briefing rules set forth for cases in Courts of Civil Appeals.
. See footnote 2 of the majority opinion.