UNIVERSAL UNDERWRITERS INSURANCE CO., Relator, v. Honorable Paul F. FERGUSON, Judge of the 149th District Court, et al., Respondents, 471 S.W.2d 28

WALKER, Justice. By an original proceeding in this court, relator seeks a writ of mandamus to compel The Honorable Paul F. Ferguson, Judge of the 149th Judicial District, to set aside a purported nunc pro tunc order entered on January 4, 1971. We have determined that relator is entitled to the writ. In 1966, Walter Stedman recovered a judgment against Wilma Brothers for personal injuries sustained in an automobile collision. This judgment became final and has been partially paid.

On May 10, 1967, Stedman filed suit against relator to recover the unpaid balance on the judgment, alleging that Wilma Brothers was an additional insured under a policy issued by relator to Curry Motor Company, Inc. This is the suit with which we are now concerned. Relator filed an answer on June 19, 1967. On October 23, 1970, Judge Ferguson dismissed a number of cases for want of prosecution. Stedman’s suit was one of the cases dismissed, and a notation to that effect was entered on the docket.

On October 26, 1970, Judge Ferguson signed an order entitled “District Court Dismissal Docket” reading as follows: On this the 23rd day of October, A. D. 1970 the docket of the District Courts of Brazoria County, Texas, was sounded and the following cases were dismissed for want of prosecution, to-wit: [list of cases, including No. 48,223, Walter Sted-man v. Universal Underwriters Insurance Co.]. ⅜ ⅜ ⅜ ⅜ ⅝ ⅝ Rendered and entered on this the 26th day of October, A.D. 1970. On December 15, 1970, Stedman filed a bill of review to set aside the order of dismissal and for judgment against relator.

Relator answered and the bill of review is pending at this time. On December 21, 1970, Stedman filed a motion for a nunc pro tunc order setting aside the judgment of dismissal on the ground that the dismissal was the result of clerical error “in that the notice of dismissal docket to be held on October 23, 1970” listed relator’s attorney as attorney for the plaintiff, Stedman. As a result of this error, it was alleged, the notice intended for Stedman’s attorney was sent to relator’s attorney. Since Stedman’s attorney had no notice that the case was to be dismissed, he did not appear at the call of the docket.

It was further alleged in the motion that the court had no intent to dismiss any case wherein notice had not been properly sent and that the case was being prepared for trial at the time of the dismissal. Relator opposed the motion for a nunc pro tunc order on the ground that the mistake sought to be corrected was judicial rather than clerical and that the trial court was without jurisdiction to set aside its prior dismissal of the case. After a hearing held on January 4, 1971, the trial court entered an order purporting to reinstate the case on the docket of the court.

Relator subsequently moved to set aside the nunc pro tunc order, and this motion was overruled. The nunc pro tunc order was entered more than thirty days after the case was dismissed, and neither the bill of review nor the motion for a nunc pro tunc order was filed in time to be considered a motion for a new trial. Under the provisions of Rule 329b, Texas Rules of Civil Procedure, the court was without jurisdiction to set aside or modify, except by bill of review, the judgment of dismissal that had been rendered.

The only action it had power to take at the nunc pro tunc hearing on January 4, 1971, was to correct clerical errors, i. e. mistakes or omissions that prevented the judgment as entered from accurately reflecting the judgment that was rendered. See Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040. In Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, judgment was rendered dismissing 180 cases for want of prosecution. The docket sheets on two additional cases were laid aside by the judge, and these two cases were not dismissed.

The two cases were erroneously included in the written judgment of dismissal as entered, and it was held that this clerical error was subject to correction by nunc pro tunc judgment after the end of the term at which the original judgment of dismissal was entered. Our situation here is different, because Stedman’s case was included in the judgment of dismissal as rendered.

This may well have been caused by a clerical error in the sense that the case would not have been dismissed if the clerk had given proper notice to Stedman’s attorney. “But, errors in rendered and entered judgments are not clerical merely because they are based upon or grow out of clerical errors.” Finlay v. Jones, Tex.Sup., 435 S.W.2d 136, 138.

Dismissal of the case was a mistake in the sense that it would not have been dismissed if the court had known the true facts, but rendition of the judgment of dismissal was nevertheless a judicial act that is not subject to correction by nunc pro tunc order after expiration of the thirty-day period specified in Rule 329b. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819. We hold that the trial court had no jurisdiction to set aside its prior judgment of dismissal by nunc pro tunc order more than thirty days after the judgment was rendered.

Respondents argue that the validity of the nunc pro tunc judgment cannot be determined without a statement of facts showing the evidence introduced at the hearing on January 4, 1971. A statement of facts is not necessary in this instance, because all the relevant facts are affirmatively disclosed by the record.

Although the trial court “ordered, adjudged and decreed” that the case was included in the order of dismissal as the result of a clerical error, it “found as a fact that the above numbered and styled cause was dismissed as the result of a clerical error.” The court also found “the material allegations in Plaintiff’s Motion for Nunc Pro Tunc Order to be true.” This refers to the original and supplemental motions for a nunc pro tunc judgment. The material allegations of these motions are set out in one identical paragraph that is quoted in the margin.

There is no allegation that the case actually was not dismissed but was included in the order of dismissal as the result of a clerical error, and the trial court has not made a finding to that effect. The petition for writ of mandamus and reply in the present proceeding are each verified by counsel for the respective parties. Apparently neither affiant was present at the docket call on October 23, and neither party has filed an affidavit or even a statement by anyone who has personal knowledge of the facts.

In these circumstances and since the petition and reply do not join issue on any material fact, both may be accepted as correctly representing the facts they purport to state. The verified petition states explicitly that on October 23, 1970, Judge Ferguson “pronounced a judgment of dismissal for want of prosecution and made a docket entry on the docket sheet in said cause, concurrently therewith.” This has not been challenged except by two sentences in respondent’s answer to the petition, and similar statements in the brief.

These statements are so qualified that they do not raise an issue of fact concerning the rendition of the judgment of dismissal on October 23, 1970. The order of dismissal entered on October 26, 1970, recites that a judgment of dismissal was rendered on October 23, 1970. The allegations of the original and supplemental motions for a nunc pro tunc judgment as well as the factual findings in the nunc pro tunc judgment indicate that the case was, in fact, dismissed.

The verified petition for writ of mandamus states that a judgment of dismissal was pronounced on October 23, 1970, and there is nothing to the contrary in the record. With the record in this condition, it is our opinion that no useful purpose would be served by requiring a statement of facts. If the case had not actually been dismissed and had simply been included in the order of dismissal as the result of a clerical error, we are satisfied that respondents would have supplied an affidavit stating the true facts.

It has also been suggested that the writ of mandamus should be denied because issuance of the writ will restore an unjust advantage gained by relator. This is on the theory that the attorney then representing relator should have advised either the court or opposing counsel that he had received the notice of the dismissal docket intended for Stedman’s attorney. At our request we were furnished copies of a letter and list of cases that apparently should have been mailed by the district clerk to Stedman’s attorney on or about August 14, 1970.

If these were received by the attorney then representing relator, a careful reading of them might have caused a person of ordinary prudence in his position to realize that he had been sent a notice intended for Stedman’s attorney. We have also been furnished an affidavit of one of the attorneys representing relator at the time stating that the notice was not received by him or his co-counsel. It would be idle to pursue that line of inquiry in the present proceeding.

In the first place, respondents have not contended in this Court that counsel for relator breached any duty owing either to the court or opposing counsel. In the second place, the nunc pro tunc judgment is void, and it is to the interest of all parties that it be so declared at this time rather than at the conclusion of an appeal following a trial of the “reinstated cause” on the merits.

Leave to file the petition for writ of mandamus having been granted, it is our opinion that the petition should now be granted without further inquiry concerning either the conduct of relator’s attorney or the justice of its position in the trial court. Respondent Stedman’s remedy, if any, is by bill of review. In determining whether he is entitled to equitable relief, it will be necessary to decide whether the facts of this case satisfy, or warrant any modification or relaxation of, the rules ordinarily governing the right to a bill of review as laid down in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996.

See Hanks v. Rosser, Tex.Sup., 378 S.W.2d 31. Writ of Mandamus will issue in the event the nunc pro tunc order of January 4, 1971, is not set aside. . “This said cause was dismissed for want of prosecution as a result of clerical error in that the notice of dismissal docket to be held on October 23, 1970 listed Defendant’s attorney, to-wit Tom Long, as Plaintiff attorney on the dismissal docket and the said copy of the dismissal docket intended to be sent and sent as a matter of practice to Plaintiff’s attorneys in causes set for dismissal was in fact sent to Defendant’s attorney, Tom Long.

Plaintiff’s attorney did not receive the said notice of dismissal and was not informed by Defendant’s attorney of the error and consequently, Plaintiff’s attorney did not appear at the dismissal docket to show cause why the case should not be dismissed. The Court had no intent to dismiss any case wherein notice had not been sent to the proper attorney.

Further that the said case is not one • which is proper for dismissal and that same has been and is being actively prosecuted and prepared for trial.” . “Further, it is specifically denied that on October 23, 1970 that Respondent, while sitting as Judge of the 149th Judicial District Court of Brazoria County, Texas, pronounced a Judgment of Dismissal for want of prosecution in that there is no record of any such proceeding or pronouncement. ⅜ * * It is further denied that the docket entry on the docket sheet in this cause was made concurrently with any pronoucement in that the record clearly reflects that the docket entry is a stamped entry and that same is not signed by the Judge whereas all the other docket entries in this cause are signed by the Judge.”