# Knox v. Long > Texas Supreme Court · April 8, 1953 · 152 Tex. 291 URL: https://www.frixlaw.com/law-library/cases/9778538 ## Case - **Full name:** Harryett H. Knox Et Al v. Betty Knox Long Et Al. - **Court:** Texas Supreme Court - **Decided:** April 8, 1953 - **Citations:** 152 Tex. 291; 257 S.W.2d 289; 1953 Tex. LEXIS 477 - **Precedential status:** Published - **Opinion:** Dissent by Garwood - **Judges:** Griffin, Garwood - **Cited by:** 136 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Jackson v. Hernandez, 155 Tex. 249 (1955). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9778538 ## Opinion text Mr. Justice Garwood, dissenting. *305 I agree with the result reached by the court to the extent that the judgments below are reversed. But, in my opinion, we should have sustained the position of the dissenting opinion of Judge Lincoln below and have thus ordered the cause stricken from the docket of the trial court, relegating our respondent, Betty Knox Long, to her rights under bill of review. Our contrary holding seems yet another instance of the old adage that “hard cases make had law.” We actually overrule our own decision in Love v. State Bank & Trust Co., 126 Texas 591 , 90 S. W. 2d. 819 , while purporting to uphold it; and, though the veracity, good faith and conscientious diligence of the trial judge in the instant case cannot be doubted, our holding henceforward subjects erstwhile clear and reliable court records to the undesirable hazard of meaning only what the judge who signed them later recalls to have been his intent at the time. Here we have a duly signed docket entry that the case was dismissed on August 8th., without any written change thereof until over a month later and after expiration of the term of court. We also have a formal decree signed by the judge as of August 8th. to the same effect as the docket entry. All this is held for naught upon the subsequent recollection of the judge that he did not intend to do what his own signature thus twice attests that he did do and what no substantially contemporaneous written record of any kind suggests that he did not do. We treat a solemn judicial document in a manner, which in the case of an ordinary deed of conveyance, would be deemed violence. While in particular cases there is a not unnatural disposition to go far in order to avoid holding a party to unpleasant consequences of a blameless oversight, yet this indulgence is just what we refused to allow ourselves in the Love case, supra, which no one appears to criticize. There the judge dismissed Mr. Love’s suit evidently on the strength of misinformation from the clerk to the effect that the suit was an inactive one. He was apparently conscious of the name and number of the case but unconscious of the equally important identifying fact that it was an active case. No doubt the error there was doubly “clerical” in the sense that the clerk also prepared the dismissal decree, but the decree and the error it embodied were held to be a judicial act, subject to correction after the term by bill of review only. The decree was held not to be a mere erroneous entry, for the reason that no previous rendition of judgment had been made in the case, and the decree was thus both a rendition and an entry, which concededly is possible. The test of *306 whether a written judgment is or is not a rendition, as. distinguished from a mere entry, was held to be — “was there an actual rendition previously made?” If not, the written judgment is. the rendition, as well as the entry. This court would now say — although no party to the litigation has so contended — that the test of what is a rendition is not that applied in the Love decision, but what the judge recollects about whether he “meant” a rendition or merely an entry —although admittedly the only previous rendition which might exist was in a different case (or cases) with a different name and number. Now if, in the instant case, the judge had but read aloud in court his decree of August 8th. and forthwith signed it, few would deny that he then rendered and entered judgment dismissing the instant case. The fact that he had theretofore rendered, but not entered, judgment in the other cases included in the same decree would not be deemed material, because, as to the instant case, we would have an oral pronouncement of judgment followed by a written one or entry. We would not consider the intention of the judge not to render judgment in the case, because he obviously did render it, whether he meant to or not. Yet there is no substantial difference between such a situation and that before us. Surely a judge is presumed to know the content of what he signs, just as a grantor is presumed to know the content of his deed, so that his signing of it is the same as if he first spoke it and then signed it. In the latter instance the chance of misapprehension is doubtless less, but it is far from wholly removed, because a judge’s “consciousness” of the indentity of a particular case depends often enough on something about it other than the name and number. He may read or speak the latter and still be thinking of a different case altogether. (Indeed, the proof does not suggest that the judge did not read his decree of August 8th before signing it, but merely that he had “no conscious intention of dismissing this particular case” thereby. Certainly he was conscious that the decree listed many cases and stated the dismissal of every one so listed). The mere fact that the decree was a writing and that all entries are writings, obviously does not mean that the decree is presumptively only an entry of some previous rendition. Certainly there is nothing impossible, or even improbable, about a judge at one moment rendering an oral dismissal of 180 cases, later concluding in his mind to dismiss yet another, and still later signing a decree, which is but an entry as to the 180 cases yet both a rendition and entry as to the 181st. Let us, for example, take the further hypothesis that in the instant case we *307 had, not one decree covering 181 cases, including the instant case, but 181 separate decrees, including one pertaining only to the instant case. Would the court then say that the Love case did not apply ? Would we say that the separate decree dismissing the instant case was but an erroneous entry of dismissals theretofore rendered in the other cases, and that, as to the instant case, which it purported to dismiss, it had no effect at all? I greatly doubt that we would. Yet there is clearly no substantial difference between the two situations. It is hard for me to see how a decree, which contains only one reference to case A and thereby correctly enters the prior rendition made in case A, can yet be, as the court says it is, an erroneous entry of that identical rendition. The inclusion in the decree of a provision regarding case B may have been an oversight, which would not have happened except for the judge’s intent to write an entry concerning case A, but it still is not an erroneous entry of a judgment concerning case A, because it correctly reflects that judgment. It is not a mere entry in case B because there was no prior rendition to enter in case B. So the reference to case B. is either a combined rendition and entry in case B or it is simply nothing at all — though it clearly purports to be a judgment in case B and is signed by the judge, just as in the Love case. As before stated, the result of the court’s holding in this suit is that an erstwhile written rendition of judgment may always be impeached by the judge later recalling that he never had the particular case in mind but really meant to enter judgment already rendered in some other case. If the rendition were oral, of course, it would be otherwise, because an oral judgment cannot be said to be an entry and so can only be considered the rendition that it is. The holding therefore brings about the peculiar situation that a written decree, which is the most solemn and heretofore most reliable form of rendering judgment, is actually less reliable than an oral pronouncement. One may also on the evidence -question the major premise of the court — that the trial judge, prior to the decree, actually rendered judgment dismisirig 181 cases, excluding the instant case. So far as the testimony discloses, the only words used that were appropriate to a judgment were the docket entries, and as before stated, these were exactly the same on the sheet corresponding to the instant case as on the others, without any written indication until over a month later that they were to be considered differently. The evidence does suggest that the formal order or decree above discussed was not executed until some *308 undetermined but very brief period after the docket entries were all signed and after the two sheets corresponding to the instant case and the “Green case” were separated from the others on the judge’s desk and all of the sheets picked up and taken off by the clerk. But the evidence does not disclose the date on which the decree was actually signed (it begins “On this the 8th day of August” and the copy in the transcript bears the notation that it was both “entered” and “recorded” on that date). The evidence suggests uncertainty as to exactly when or how the date of August 8th got on the docket entries and does not state the date on which the docket sheets were segregated on the desk and taken away. Out of this confusing evidence of circumstances which all appear to have occurred within a very brief period of time, for us to reconstruct (a) an oral type of rendition of judgment dismissing all of the cases except the instant one and (b) a subsequent entry consisting of the formal decree, appears to me quite artificial. The judge was not asked about when he rendered or meant to render judgment, but only whether he ever intended to render a judgment in this particular case. Mindful that our decision is a precedent for the future, I think the more safe and sensible way to resolve such a situation is to look, not to the later recollection of the judge about his real intentions and to the single and inconclusive act of separating papers on a desk, but to the written records purportedly made at the time, which alone purport to reflect in approprite form an act of judgment and manifest in so many words a dismissal on August 8th of all the causes concerned, including the instant suit. In other words, we should conclude — and the conclusion is not clearly opposed by anything in the evidence — that the only act of judgment ever performed was the signing of the written decree of August 8th. Such a conclusion, of course, brings the case squarely within the Love decision, even if the latter should not otherwise apply. Opinion delivered May 6, 1953. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778538. Public record. Not legal advice.