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which, inside our feeling, really should be answered from the detrimental. Short article 2291, R. C. S. 1925, delivers that: "The clerk shall retain a movement docket during which he shall enter each and every movement submitted in his court, the names of your functions as well as their Lawyers, a quick statement of its nature, and the volume of the match during which it really is created if it pertains to a fit pending. * * * Notice of a motion in a very fit pending is presented by filing the movement and its entry while in the motion docket in the phrase. * * *" While we don't deem it essential to ascertain no matter if, right after dismissal and just before reinstatement, the situation experienced the status of "a match pending" throughout the which means with the statute, yet we're inclined towards the perspective expressed in Hexter v. Pratt (Tex. Com. App.) ten S.W.(2d) 692, 694, with reference to your case On this affliction, where the court docket stated: "It [the judgment of dismissal] is exactly what it purports being, a willpower of a lack of diligence in prosecuting the suit for which it truly is stricken within the docket. It effectually put an conclude to the particular proceeding, but was fully ineffectual to ascertain the deserves with the claim therein asserted." Nevertheless, if we think, Despite the fact that we do not so come to a decision, that the situation, just after being dismissed and prior to its reinstatement, was "a match pending," in the indicating from the statute, yet, underneath the situation, defendant was not visited with statutory or constructive see of your proceedings, because no motion to reinstate was at any time submitted or entered upon the motion docket, and it is only when the statute in this regard is complied with that constructive notice of this more info kind of movement is visited on the adverse get together. So within the absence of possibly precise or constructive recognize from the proceedings that resulted during the rendition of judgment against him, we expect defendant showed sensible justification for his absence; Also, he exhibited meritorious defenses to plaintiff's cause of motion, and we fail to discover how plaintiff can be materially prejudiced by granting defendant a new demo. ...
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