Fullerton Transfer & Storage Co. v. McNeil

POLLOCK, J.

All that appears in the latter entry is that the motion for rehearing:

“This day this cause comes on to be heard on motion for rehearing on motion for new trial; upon consideration thereof the court sustains the same and a rehearing is hereby allowed.”

And then there is a judgment entered. There is no finding that this motion was really filed within time; in other words, there is no finding that the date entered which appears on the dockets and journal entry, was a mistake. We do not know what transpired. There is no bill of exceptions filed of evidence that was heard on the motion for rehearing, so we presume that the court did not find that there was any mistake made by the date shown on the docket and journal entries.

Now, we have two judgments, the later judgment entered on a rehearing, without any reason given whatever for entering judgment. The former judgment is not stricken out. It is still in full force on the records of the court below. We think that this latter judgment must be said to be- a surplusage or nullity; anyhow, it has no effect on the rights of the defendant in error, but his rights, and the rights of the plaintiff in error, were fixed and established when the first judgment was entered.

It follows that the bill of exceptions must be stricken from the record, and in fact the petition in error was filed out of time. The judgment below will be affirmed.

Roberts, and Farr, JJ, concur.