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which, inside our opinion, really should be answered from the detrimental. Short article 2291, R. C. S. 1925, delivers that: "The clerk shall hold a motion docket by which he shall enter every movement filed in his court docket, the names on the events as well as their attorneys, a quick statement of its mother nature, and the amount of the suit wherein it truly is produced if it pertains to a fit pending. * * * Notice of a movement inside a go well with pending is provided by submitting the movement and its entry while in the movement docket through the expression. * * *" Whilst we do not deem it important to determine no matter if, after dismissal and ahead of reinstatement, the situation experienced the position of "a suit pending" within the meaning of your statute, nevertheless we're inclined to your perspective expressed in Hexter v. Pratt (Tex. Com. Application.) ten S.W.(second) 692, 694, with reference to your circumstance During this condition, exactly where the court said: "It [the judgment of dismissal] is exactly what it purports to be, a resolve of an absence of diligence in prosecuting the match for which it truly is stricken from the docket. It effectually place an stop to the particular continuing, but was totally ineffectual to determine the deserves on the claim therein asserted." However, if we assume, although we do not so determine, that the situation, right after being dismissed and in advance of its reinstatement, was "a fit pending," throughout the that means of your statute, nevertheless, under the instances, defendant was not visited with statutory or constructive see from the proceedings, for the reason that no motion to reinstate was ever filed or entered upon the motion docket, and it is just in the event the statute On this respect is complied with that constructive detect of this kind of movement is frequented on the adverse celebration. So while in the absence of possibly precise or constructive notice in the proceedings that resulted while in the rendition of judgment from him, we expect defendant confirmed acceptable justification for his absence; On top of that, he exhibited meritorious defenses to plaintiff's explanation for motion, and we fall short to view how plaintiff may be materially prejudiced by granting defendant a whole new trial. ...
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