Malone v. Pierson , 163 So. 773 ( 1935 )

DREW, Judge.

Without going into the pleadings, issues, and facts of this case, it is most evident that the minutes of the court are incorrect, in that they do not show that an answer was filed, which in fact was filed.

They also show a motion for rehearing on the exception of no cause of action was filed June 12, 1934, when in fact the motion shows that it was filed on June 11, 1934.

The minutes next show the rehearing on the exception of no cause of action was fixed for June 20, 1934, the rehearing allowed, the exception argued and submitted to the court. The minutes fail to show what, if anything, was done with the exception after same was submitted to the court.

Then, on July 7th, we find a minute entry showing default entered against the Warrantor on the call in warranty, and the case fixed for trial. The answer and call in warranty shows on its face that it was filed on June 23, 1934, which answer begins by reserving all rights under the .exception herein filed and overruled by the court, and reserving all rights thereunder.

If it were not for the patent errors in the minutes, we would, of course, assume that the exception of no cause of action, when argued on rehearing, was never passed upon, and it would necessarily pass out of the case, but since the minutes are, on the face of the record, deficient, we cannot assume this as a fact, since defendant in answer (which the minutes fail to show was filed) recites that the exception was overruled, and the answer bears the filing mark of the clerk showing it was actually filed.

We therefore think, in fairness to all parties, that the case should be remanded, with instructions to the clerk to correct the minutes to show actually what transpired in regard to this case in the lower court.