Hannon v. Henson , 1928 Tex. App. LEXIS 570 ( 1928 )

On Motion for Rehearing. The original opinion in this case and that on the first motion for rehearing were written by Justice LEVY and concurred in by all the members of this court. In response to a motion by the appellants we have given the case further consideration. On account of the absence of Justice LEVY the writer will state the conclusions finally reached and in which Justice LEVY concurs. The material facts and issues have been previously stated and will not be here repeated.

This proceeding is merely one to perfect a judicial record, to have entered upon the probate minutes an order made at a former term and which was inadvertently, or otherwise, omitted. It is well settled that courts have the inherent power to correct their own records at any time so as to make them legally disclose what has been adjudicated. That power exists independently of any statute, and may be exercised by the court on its own motion, as well as at the instance of an interested party. To have a record corrected when essential to the complete administration of justice in a case is a continuing duty resting upon the court, not a mere private right of action which may be lost by lapse of time. The court may lose jurisdiction of the case to which the record relates, but it never loses jurisdiction over its records. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040. The only questions necessarily involved in such proceedings are, was a judgment rendered, and, if so, is there record evidence of that fact? 34 Corpus Juris, p. 72, thus states the rule:

"The power to enter a judgment nunc pro tune can be exercised only in cases where the cause was ripe for judgment; that is, where the case was in such a condition at the date to which the judgment is to relate back that a final judgment could have been then entered immediately."

See, also, Perkins v. Dunlavy, 61 Tex. 241.

It may be said that a case is "ripe for judgment," as stated above, when nothing remains to be done by the court that rendered the judgment to authorize the clerk to record it in the minutes. In this case the order making permanent the appointment of D. L. Henson as guardian had been rendered, and a notation to that effect had been made by the presiding judge on the probate docket. That was sufficient evidence that such an order had been made. West v. Keeton, 17 Tex. Civ. App. 139,42 S.W. 1034. The duties of the judge of the court then ended, and all that remained was the clerical work of properly recording in the minutes what the court had done. It was the failure of the clerk to perform that duty that has made these proceedings necessary. The court is now called upon to order done what the clerk should then have done without any further order. In a purely nunc pro tunc proceeding the court has no power to do more than that. He is then considering the record alone — not any question, or issue, involved in the proceedings to be recorded. Having no jurisdiction of the original case, he has no authority to inquire into, or decide, that which had to be decided before a valid order could be made. The presumption in favor of the validity of a judgment arises from the fact that the judgment was rendered, and legal evidence of its rendition has been preserved. The mere clerical act of entering the judgment upon the minutes gives it no additional immunity from an attack made in the proper manner and at the proper time.

In proceedings for the appointment of a permanent guardian the court has no power to appoint until legal notice has been given. In this instance it was the duty of the court in the original proceedings to ascertain if notice had been given before making the order. Whether or not that had been done was a question of fact which the court was then called upon to decide. In this proceeding we must presume that he decided it correctly. Bouldin v. Miller, 87 Tex. 359, 28 S.W. 940. The duty of inquiring into the validity of such an order is no more imperative when the correction is sought by an interested party than it is when the court is acting upon his own motion. In either proceeding the record can only be corrected by the evidence furnished by the record.

It is true that the notice was not recorded in the probate minutes, as the statute requires. But the failure of the clerk to make that entry after the order was made did not impeach the validity of that which the court had jurisdiction to do. The power to make the order depended upon the fact that the legal notice had been given, not upon its record in the court minutes.

It appears from the statement of facts brought to this court that the applicant for the correction undertook to prove by extraneous evidence that legal notice had been given. Appellants here contend that the evidence then adduced showed conclusively that no notice had been given. Undoubtedly that contention would be entitled to serious consideration if in this proceeding the fact of notice could be inquired into. But that cannot be done. The only question before the court was, Is there legal evidence that the final order had been made? When that evidence was found the presumption in favor of the power of the court to make the order became conclusive. When the law conclusively presumes a fact extraneous evidence to the contrary is not admissible, and if admitted it cannot be considered. However, what has been here said as to the conclusiveness of the presumption in favor of notice does not obtain in proceedings when the judgment or order is directly attacked in the answer upon the ground that no legal notice had been given. But in order to reopen that question there must be pleadings by the proper parties, and against necessary parties, affirmatively impeaching the original order upon that ground and for the purpose of having the unrecorded order annulled. That issue cannot be raised collaterally merely for the purpose of preventing the perfection of the record. A pleading sufficient to constitute a direct attack upon an order or judgment, when presented in the form of an answer, is nevertheless a distinct action, and its sufficiency as a cause of action is determined by what would be required of the pleader in an independent suit instituted for the purpose of annulling the judgment. In the original disposition of this appeal the answer of the appellants was treated as meeting those requirements. Upon further consideration of the case we have receded from that conclusion.

But even if the answer contained all the requisites essential to constitute a direct attack upon the order under consideration, all the parties who would be affected by the cancellation of that order are not before the court. It appears from the pleadings that appellants are sureties on a bond executed by D. L. Henson, as the former guardian, to enable him to sell real estate belonging to his wards; that the real estate was sold by Henson, and a suit on that bond, filed by the present guardian, is now pending in the district court of Bowie county. Evidently some person bought the land sold by the guardian, and that party would naturally be interested in the preservation of the record through which his title must be deraigned, and should be made a party to any suit having for its object the annulment of the order appointing D. L. Henson guardian. No such party is now before the court. The failure to have the necessary parties before the court in such a proceeding is a fundamental defect which may be noticed at any stage of the case. Dallas County Levee Improvement District v. Ayers (Tex.Civ.App.) 246 S.W. 1112; King v. Commissioners' Court, 10 Tex. Civ. App. 114, 30 S.W. 257. Other authorities might be cited to the same effect, but it is unnecessary.

There is another fact which may be considered in the disposition of this appeal. Appellants allege that this proceeding to correct the record was instituted by the present guardian in order that such record when perfected may be used in the prosecution of the suit against D. L. Henson and his sureties now pending in the district court. The logical inference is that the sole purpose of the appellants in resisting the perfection of the record is to defeat, if possible, the effort in behalf of the minors to collect what is due their estate from a defaulting guardian. It is well settled that one who has qualified and acted as guardian is, when sued as such for a default, estopped to question the regularity of his appointment. Portis v. Cummings, 21 Tex. 266. For the same reason he should not be permitted to maintain a suit to annul the order of his appointment when prosecuted for the sole purpose of escaping liability for injuries from his official misconduct. We are of the opinion that his sureties are in no better position. The bond executed by them was based upon the assumption that he had been legally appointed, if it did not recite that fact. By signing the bond the sureties guaranteed the fidelity of their principal, and thus enabled him to sell his ward's property and gain possession of proceeds which he has not accounted for. We think they are no less subject to the same estoppel. Plowman v. Henderson, Adm'r, 59 Ala. 559; Nash v. Sawyer, 114 Iowa 742, 87 N.W. 707; Power v. Speckman, 126 N.Y. 354, 27 N.E. 474; Hoffman v. Fleming,66 Ohio St. 143, 64 N.E. 63; Bruce et al. v. United States, 17 How. 437, 15 L. Ed. 129; 24 Corpus Juris 1059.

For the reasons stated, we conclude that the pleadings of the appellants should be construed as only a collateral attack on the probate order originally made, and that the validity of that order is not an issue.

The motion will be overruled.