Whicker v. Taylor , 1967 Tex. App. LEXIS 2333 ( 1967 )

422 S.W.2d 609 (1967)

E. W. WHICKER, Appellant,
v.
G. A. TAYLOR, d/b/a G. A. Taylor Company, Appellee.

No. 4672.

Court of Civil Appeals of Texas, Waco.

December 7, 1967. Rehearing Denied January 4, 1968.

Mitchell D. Stevens, Dallas, for appellant.

Henry Klepak, William B. Pasley, Dallas, for appellee.

OPINION

TIREY, Justice.

This appeal is by defendant Whicker from an order of the County Court at Law No. 3 of Dallas County, entering judgment nunc pro tunc in Cause No. CC-66-5643-C, styled G. A. Taylor, d/b/a G. A. Taylor Company v. W. E. Whicker. The order appealed from was dated May 8, 1967.

Plaintiff went to trial on his original petition, which was a suit for the balance owing on an open account amounting to $400.00, and for attorney's fees under Article 2266, Vernon's Ann.Tex.Civ.St. The account was duly verified.

The original judgment was entered on October 24, 1966, and the recitals in the judgment stated that the defendant, though duly cited and served, failed to answer, and the court awarded plaintiff judgment in the sum of $400.00 with legal interest against W. E. Whicker, plus $150.00 attorney's fees. The transcript shows that defendant filed his original answer, including a plea of general denial, on October 27, 1966, which was three days after the original judgment was entered.

On January 17, 1967 plaintiff filed his motion to enter judgment nunc pro tunc and, as grounds for the motion, set up that E. W. Whicker was the correct name of the defendant instead of W. E. Wicker, alleging that a clerical error had been made in this respect, and asked the Court to correct it.

Thereafter, on February 24, 1967, the Court granted the motion and corrected the judgment, and in the judgment there is a recital to the effect that the Court is of the opinion that E. W. Whicker and W. E. Wicker are one and the same person, and that defendant E. W. Whicker was personally served with citation in this cause, and had an opportunity to defend against the plaintiff's asserted cause of action, but failed to do so prior to the entry of the judgment on October 24, 1966; that the mistake made in the initials of defendant Whicker constitutes a clerical error and not a judicial error, and entered judgment in favor of plaintiff against E. W. Whicker for the sum of $400.00, together with $150.00 attorney's fees and costs.

Appellant's Point 1 is that the Court erred in entering the judgment nunc pro tunc on May 8, 1967. We overrule this contention and affirm the judgment of the trial court. It is well settled that a trial court has power to amend a judgment at any time to correct clerical errors and correctly recite the true action taken. The appropriate method for accomplishing this is the entry of a judgment nunc pro tunc. See Rule 317, Texas Rules of Civil Procedure. See also 33 T.J.2d, par. 146, p. 672. See also Kendall v. Johnson, Tex.Civ.App., 212 S.W.2d 232, n. w. h. Much has been written on the above matter, but we see no need to cite further cases.

Appellant's Point 2 is that the Court erred in refusing to allow defendant Whicker an opportunity to present evidence of defenses to the merits of plaintiff's cause of action. We have considered this point carefully, and it is overruled.

The judgment of the trial court is affirmed.