Opinion
No. 3840.
June 1, 1939.
Appeal from Gregg County Court; Perry R. Meredith, Judge.
Suit by John E. Bussing against the Texas Pacific Railway Company to recover the value of a dog which was shipped by the plaintiff from Longview, Texas, to El Paso, Texas, and which the defendant failed to deliver. From a judgment for the plaintiff, the defendant appeals.
Reversed and remanded.
This is a suit by the appellee Bussing against the appellant to recover the value of a dog which was shipped by the plaintiff from Longview, Texas, to El Paso, Texas, and which the defendant failed to deliver at the place last named.
The case was tried before a jury at the March Term, 1938, of the County Court of Gregg County, which term adjourned May 9, 1938. Verdict upon special issues was filed April 29, 1938. At the May Term of Court appellee filed a motion praying the Court for entry of a judgment nunc pro tune in his favor. On the 3rd day of June, 1938, an order was entered by the Court granting said motion. Whereupon, judgment was entered in appellee's favor as of April 29, 1938, and the defendant appeals.
Frank C. Bolton, Jr., and Bramlette, Levy Dotson, all of Longview, for appellant.
T. G. Jackson and Louis M. Hitch, both of Longview, for appellee.
The entry of a judgment nunc pro tune at a subsequent term of court is not authorized, unless a judgment was actually rendered at the previous term of the court. A judgment nunc pro tune presupposes a judgment previously actually rendered at the proper time, but not entered of record. 25 Tex.Jur., Judgments, Sects. 68 and 70; Hannon v. Henson, Tex.Com.App., 15 S.W.2d 579; Camoron v. Thurmond, 56 Tex. 22; Finnigan-Brown Co. v. Escobar, Tex. Civ. App. 192 S.W. 256; Waggoner v. Davis, Tex. Civ. App. 261 S.W. 482; Texas N. O. R. Co. v. Turner, Tex. Civ. App. 193 S.W. 1087; Frick-Reid Supply Co v. Jones, Tex. Civ. App. 286 S.W. 650.
But the action of the Court in ordering the entry of the judgment nunc pro tunc is presumptively correct. In the absence of evidence to the contrary this Court must assume the facts authorized the entry. Hannon v. Henson, supra. Appellant calls attention to certain allegations contained in the motion for judgment nunc pro tunc as evidencing the fact that no judgment was actually rendered at the March Term of the Court, but we do not regard such allegations as so showing.
Issue No. 9 reads: "What was the actual loss in money sustained by the owner on account of being deprived of the dog?" The jury answered $150, for which amount judgment was rendered.
There is no evidence the dog had no market value. Dogs ordinarily have no such value. (Gulf, C. S. F. R. Co. v. Blake, 43 Tex. Civ. App. 180, 95 S.W. 593), but this is not true of all dogs. Dogs of good breed and pedigree usually have a market value. It is alleged the dog in question was "a female Boston Terrier of high breed and pedigree." Plaintiff testified he paid $75.00 for the dog's mother and litter. In order for plaintiff to recover the actual or intrinsic value of the dog it was incumbent upon him to show it had no market value. Young's Bus Lines v. Redmon, Tex. Civ. App. 43 S.W.2d 266; Gulf, C. S. F. R. Co. v. Roberts, Tex. Civ. App. 85 S.W. 479.
Having failed to do so, it was error to submit the issue quoted as the measure of plaintiff's damage. See cases last cited.
Appellant's assignment and proposition raising this question are sustained.
Appellant's fourth proposition presents no error. Chicago R. I. G. R. Co. v. Scott, Tex. Civ. App. 156 S.W. 294; International G. N. R. Co. v. Pool, 24 Tex. Civ. App. 575, 59 S.W. 911; 8 Texas Jurisprudence, pp. 546, 553.
Reversed and remanded.