First National Bank of Giddings v. Birnbaum
First National Bank of Giddings v. Birnbaum
070rehearing
ON MOTION FOR REHEARING
On motion for rehearing, the bank contends this Court erred in dismissing the appeal for want of jurisdiction because the district court has acted on the merits of the application for turnover relief. The bank states that the district court’s docket sheet shows the application for turnover relief was denied on February 22, 1991. This docket sheet was omitted from the transcript. The bank also has filed a motion to supplement the record, requesting this Court to direct the district clerk to certify and transmit a supplemental transcript to the Clerk of the Court. The bank has attached a certified copy of the docket sheet to its motion to supplement the record.
It is well established that docket entries may not take the place of a separate order or judgment:
Judgments and orders of courts of record to be effectual must be entered of record. Neither entries in the judge’s docket nor affidavits can be accepted as substitutes for such record; and docket entries, affidavits, and other like evidence can neither change nor enlarge judgments or orders as entered in the minutes of the court.
Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566 (1937).
The supreme court has apparently relaxed the absolute prohibition against the use of docket entries in some limited, al
In light of our discussion of the probative value of docket entries, the bank’s motion to supplement and the bank’s motion for rehearing both are overruled.
. The pertinent docket entry states, “2 22 91— Application for turnover order. DENIED /s/ HRT.”
. Hamilton relied on the following statutes and court rule: 1925 Tex.Rev.Civ.Stat., § 1, arts. 1899, 1902, at 526, 527 (since repealed and codified at Tex.Gov’t Code Ann. § 51.303, as amended); 1925 Tex.Rev.Civ.Stat., § 1, art. 1918, at 529 (since repealed and promulgated at Tex. R.Civ.P.Ann. 20); 1892 Rule for the District and County Courts 65, 84 Tex. 717 (since repealed and promulgated at Tex.R.Civ.P.Ann. 304).
. Contra Charles L. Hardtke, Inc. v. Katz, 813 S.W.2d 548, 550 (Tex.App.1991, no writ) (holding that a signed docket entry can qualify as an order setting aside a written dismissal order and citing Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953) (judge's delivery to the clerk of "order" or "signed written memorandum of dismissal” on docket sheet dismissing cause for want of prosecution constituted rendition of judgment as effectively as if dismissal was pronounced orally in open court), overruled on other grounds by Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955)). Without expressing an opinion on whether Katz was correctly decided or whether Katz properly interpreted Knox, we note that the First Court of Appeals has recently limited Katz to instances in which the trial court is correcting its own mistake. Intercity Management Corp. v. Chambers, 820 S.W.2d 811, 812-13 (Tex.App.1991, orig. proceeding [mandamus filed sub nom. Arsht Co. v. First Court of Appeals, No. D-1982 (Tex.) ]).
. We are aware that many counties are replacing the old written docket sheets with computerized sheets which may or may not accurately or fully reflect the nature and scope of the trial judge’s ruling.
Opinion of the Court
This is an appeal from a postjudgment award of sanctions under Texas Rule of Civil Procedure 13. Tex.R.Civ.P.Ann. 13 (Pamph. 1991). Appellant First National Bank of Giddings received a money judgment against appellee Dorothy Bimbaum and Ryan Bimbaum in December 1990. The bank filed a postjudgment application for turnover relief to enforce the judgment, and Dorothy Bimbaum responded to the application and filed a motion for sanctions under Rule 13. In four points of error the bank contends the district court erred in imposing sanctions because: (1) the evidence was insufficient to show the turnover application was groundless; (2) the evidence was insufficient to support the court’s finding that allegations in the turnover application were groundless and brought in bad faith; (3) there was insuffi
The order for sanctions under Rule 13 was rendered in connection with the application for turnover relief.
The cause is dismissed for want of jurisdiction.
. Although the order for sanctions utilizes the word "contempt,” we will liberally construe the order as a potentially appealable order for sanctions. The validity of a civil contempt order in which there is no order of confinement may be attacked only by mandamus. See Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960); Wagner v. Wamasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956).
Reference
- Full Case Name
- FIRST NATIONAL BANK OF GIDDINGS, TEXAS, Appellant, v. Dorothy BIRNBAUM, Appellee
- Cited By
- 43 cases
- Status
- Published