44 cash Fundamentals Explained
44 cash Fundamentals Explained
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which, within our check here view, needs to be answered within the unfavorable. Write-up 2291, R. C. S. 1925, delivers that: "The clerk shall keep a movement docket in which he shall enter each and every movement filed in his court, the names of the functions as well as their attorneys, a brief statement of its mother nature, and the number of the fit wherein it can be produced if it relates to a match pending. * * * Observe of a motion in the match pending is presented by filing the motion and its entry in the movement docket through the phrase. * * *" Even though we do not deem it required to determine whether or not, following dismissal and just before reinstatement, the case had the status of "a accommodate pending" in the indicating on the statute, nevertheless we're inclined to your watch expressed in Hexter v. Pratt (Tex. Com. Application.) ten S.W.(second) 692, 694, with reference to some scenario On this condition, where by the court docket stated: "It [the judgment of dismissal] is precisely what it purports to become, a perseverance of a lack of diligence in prosecuting the match for which it can be stricken with the docket. It effectually place an stop to the particular proceeding, but was completely ineffectual to determine the merits in the declare therein asserted." On the other hand, if we presume, although we don't so come to a decision, that the case, following becoming dismissed and before its reinstatement, was "a suit pending," within the which means in the statute, nevertheless, underneath the instances, defendant wasn't visited with statutory or constructive detect of the proceedings, due to the fact no movement to reinstate was at any time submitted or entered upon the motion docket, and it is only once the statute With this regard is complied with that constructive see of this kind of movement is visited upon the adverse party. So inside the absence of either precise or constructive recognize of your proceedings that resulted in the rendition of judgment versus him, we expect defendant confirmed acceptable justification for his absence; On top of that, he exhibited meritorious defenses to plaintiff's explanation for action, and we fall short to find out how plaintiff could possibly be materially prejudiced by granting defendant a fresh trial. ...
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