Swanson v. Holt

On Motion for Rehearing.

The motion for rehearing is well presented, and objection may hot be found to the law points argued therein. The difference, as considered by this court, is that an amended or corrected judgment does not appear entered in the record. There appears in this case a final judgment rendered on July 1, 1931, in favor of the plaintiff canceling as null and void the instruments under which the defendants claimed. It further appears that thereafter, on- October 23, 1931, an order of the court was entered of record providing “That the judgment made and entered herein should be modified and corrected,” so far as pertains to a particular portion thereof, by “the addition of the phrase ‘insofar as the rights of the plaintiff are affected thereby,’ ” in respect to the mineral deed referred to of date March 13,1931, from Swanson and Holt to O’Keefe. It was expressly directed “that this order take effect as of the 7th day of August, 1931.” The order so made, as is manifest, is to the extent only of simply reciting so much of the judgment as needs correction and describing a particular amendment allowed to be made thereto and determining that it should be! corrected or amended only to conform to the terms of the order granting the correction or amendment. The order may not be viewed: as the correction of the first judgment, but in effect merely an order allowing an amendment of a portion of such judgment to be-made. The order was short of a judgment final in form. Fitzgerald v. Evans & Hoffman, 53 Tex. 461. The order for the amendment, although a prerequisite, is,.not alone a sufficient procedure for the purpose of correcting omissions or making amendment of the record of the first judgment. An amendment of a former judgment may be accomplished by entering the order therefor, as here done, and then following up such order by vacating or replacing the former judgment by new entry conforming or answering to the order of amendment. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; State ex rel. Rwy. v. Broaddus, 212 Mo. 685, 111 *268S. W. 508; Thompson v. Great Western Acc. Ass’n, 136 Iowa, 557, 114 N. W. 31; Den ex dem, Jones v. Lewis, 30 N. O. 70, 47 Am. Dec. 338. It becomes necessary to make a second or new judgment for the whole adjudication of the subject-matter altering and replacing the record' of the first judgment.

In the case cited of Luck v. Hopkins, 92 Tex. 426, 49 S. W. 360, there was formal judgment in full and at length entered of record replacing the former judgment. The judgment, too, was likewise corrected in form in the following cases, in full and at length further cited: Hall v. Read, 28 Tex. Civ. App. 18, 66 S. W. 809; Batson v. Bentley (Tex. Civ. App.) 297 S. W. 769.

In the present ease no new or other judgment was formally entered on the order of October 23d, and hence, as before held in the original opinion, the record stands here as having only the original final judgment duly entered on July 1, 1931. As quoted from the original opinion, “When this record is examined without reference to the order amending the judgment, it is apparent at once that this court has no jurisdiction to entertain an appeal of this case.”

The motion for rehearing is overruled.