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which, within our view, must be answered while in the destructive. Post 2291, R. C. S. 1925, supplies that: "The clerk shall maintain a motion docket through which he shall enter every movement filed in his court, the names of your events and their Lawyers, a quick assertion of its character, and the amount of the go well with wherein it really is designed if it pertains to a suit pending. * * * Recognize of the motion inside of a fit pending is supplied by submitting the movement and its entry in the motion docket over the term. * * *" Though we don't deem it vital to find out irrespective of whether, right after dismissal and in advance of reinstatement, the situation experienced the position of "a accommodate pending" within the that check here means from the statute, yet we have been inclined for the check out expressed in Hexter v. Pratt (Tex. Com. App.) ten S.W.(2d) 692, 694, with reference to some circumstance in this situation, where by the court docket said: "It [the judgment of dismissal] is precisely what it purports to generally be, a perseverance of a lack of diligence in prosecuting the match for which it can be stricken with the docket. It effectually place an conclude to The actual proceeding, but was totally ineffectual to ascertain the merits of the claim therein asserted." However, if we think, Even though we do not so determine, that the situation, immediately after becoming dismissed and ahead of its reinstatement, was "a fit pending," throughout the this means in the statute, but, under the instances, defendant wasn't visited with statutory or constructive notice of your proceedings, for the reason that no movement to reinstate was ever submitted or entered on the movement docket, and it's only once the statute Within this respect is complied with that constructive notice of this kind of motion is visited on the adverse occasion. So in the absence of possibly actual or constructive observe in the proceedings that resulted inside the rendition of judgment versus him, we expect defendant showed acceptable justification for his absence; On top of that, he exhibited meritorious defenses to plaintiff's reason behind motion, and we fail to view how plaintiff can be materially prejudiced by granting defendant a brand new demo. ...
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