which, within our opinion, needs to be answered during the adverse. Write-up 2291, R. C. S. 1925, offers that: "The clerk shall maintain a motion docket in which he shall enter each individual movement submitted in his court docket, the names with the functions as well as their attorneys, a quick statement of its mother nature, and the quantity of the fit wherein it truly is made if it relates to a go well with pending. * * * Observe of the motion in a suit pending is presented by submitting the movement and its entry while in the motion docket through the phrase. * * *" When we don't deem it important to find out no matter if, following dismissal and right before reinstatement, the case had the position of "a suit pending" throughout the meaning with the statute, yet we've been inclined to your look at expressed in Hexter v. Pratt (Tex. Com. Application.) ten S.W.(2d) 692, 694, with reference to your scenario During this issue, wherever the court docket stated: "It [the judgment of dismissal] is exactly what it purports to be, a dedication of an absence of diligence in prosecuting the suit for which it is actually stricken from the docket. It effectually set an stop to The actual continuing, but was completely ineffectual to determine the merits with the assert therein asserted." However, if we believe, While we do not so come to a decision, that the situation, right after currently being dismissed and before its reinstatement, was "a fit pending," in the meaning from the statute, but, beneath the circumstances, defendant was not frequented with statutory or constructive recognize of the proceedings, for the reason that no movement to reinstate was at any time filed or entered on the movement docket, and it is just once the statute in this regard is complied with that constructive observe of this type of motion is visited on the adverse celebration. So while in the absence of possibly precise or constructive observe with the proceedings that resulted within the rendition of judgment versus him, we think defendant confirmed affordable excuse for his absence; Also, he exhibited meritorious defenses to plaintiff's reason behind motion, and we fail to view how plaintiff might be materially prejudiced by granting defendant a different trial. ...

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Countrywide Cash Sign-up Organization, a corporation, sued M. Morris on a promissory Be aware and to foreclose the lien of the chattel home finance loan on three cash registers. Defendant answered by a normal denial and specially pleaded a payment of $a hundred, also claimed an agreed credit history of $200, and 44 cash an offset of $a hundred, as a result of defects in one of many cash registers for which the Be aware was offered. The case was dismissed for want of prosecution February 28, 1930, but the subsequent day, on verbal motion of plaintiff (no prepared movement is present in the report), the courtroom put aside the judgment and reinstated the bring about. On April 26, 1930, the lead to was experimented with in the absence of defendant, and resulted in judgment against him in favor of plaintiff for $473.sixty three, with foreclosure of your mortgage lien over the cash registers. Throughout the exact phrase of court docket defendant filed a sworn motion to vacate the judgment, during which he alleged, as an justification for getting absent the day of demo, that neither he nor his legal professional experienced knowledge or notice of the motion to put aside the order of dismissal or that the case were reinstated and subsequently tried using, right until Could 21, 1930, once the sheriff confronted him using an purchase of sale and execution issued within the judgment; also, that he had meritorious defenses for the accommodate, to wit, the defensive matters set up in Particular pleas in his primary remedy. Nothing during the history implies that defendant's movement was contested by plaintiff, or that any proof, in addition to the sworn allegations with the motion, was heard or viewed as by the courtroom. The movement was overruled; defendant excepted and perfected appeal. Defendant contends that his movement to vacate the judgment contained all important requisites entitling him to your aid sought, that's, an justification for becoming absent from the trial of the case, also meritorious defenses to plaintiff's explanation for motion, and additional contended that plaintiff would not be materially prejudiced by granting the movement. We expect defendant's motion was ample. Having proven that neither he nor his legal professional experienced actual discover in the reinstatement of the case, nor of its subsequent trial along with the rendition of judgment, the dilemma continues to be, was defendant frequented with statutory detect of those proceedings?

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