Wooton v. Manning , 11 Tex. 327 ( 1854 )

Wheeler, J.

It is objected to the judgment, that the Court first dismissed the case, and then proceeded to give judgment for the ..plaintiff. The entry of the judgment is peculiar, and apparently contradictory. The failure of the defendant to file his answer, as recited, would not be cause for dismissing the cause; but rather for giving judgment for the plaintiff, which was accordingly done. ■ We have repeatedly decided, that after dismissing a certiorari, the Court canhot proceed to give judgment on the merits. But there is, in the record, no judgment of the Court dismissing the certiorari. The only judgment is that rendered for the plaintiff; and the statement, in the entry of that judgment, that “this cause is dismissed,” must be, we conclude, a clerical misprision. It is so irepugnant to what precedes and follows it, that we cannot suppose it truly to represent the action of the Court. Besides it has been repeatedly decided, that these, or equivalent words, without more, do not amount to a judgment of dismissal; and their insertion in the entry cannot affect the validity of the final judgment, rendered in the case.

It might have been answered to this objection to the judgment, that it was not assigned as error. But if well founded in fact, it would seem an objection, going so directly to the foundation of the judgment, as to have required notice, and the reversal of judgment, even though not assigned as error. A judgment rendered in a cause, after it had been dismissed, would be void; and that is an objection of a character, which the party will not, by his silence, be deemed to have waived; and consequently, one which the Court must notice, though it be omitted in the assignment of errors. But, we are of opinion that the objection is not well founded in fact. The judgment is affirmed.

Judgment affirmed.