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which, inside our opinion, must be answered inside the negative. Short article 2291, R. C. S. 1925, gives that: "The clerk shall keep a motion docket wherein he shall enter every single motion filed in his courtroom, the names of the functions as well as their attorneys, a short assertion of its mother nature, and the amount of the go well with by which it is actually created if it pertains to a suit pending. * * * See of a movement in a suit pending is provided by filing the movement and its entry in the motion docket over the phrase. * * *" Though we do not deem it vital to ascertain irrespective of whether, soon after dismissal and right before reinstatement, the situation experienced the position of "a suit pending" inside the this means of your statute, yet we've been inclined to the view expressed in Hexter v. Pratt (Tex. Com. App.) ten S.W.(2d) 692, 694, with reference to a circumstance With this issue, wherever the court docket explained: "It [the judgment of dismissal] is just what it purports to generally be, a willpower of a lack of diligence in prosecuting the go well with for which it can be stricken from your docket. It effectually place an finish to The actual continuing, but was entirely ineffectual to ascertain the deserves from the claim therein asserted." Nonetheless, if we presume, Whilst we do not so choose, that the case, following currently being dismissed and before its reinstatement, was "a suit pending," in the which means of your statute, yet, underneath the situation, defendant was not visited with statutory or constructive see on the proceedings, due to the fact no movement to reinstate was at any time submitted or entered upon the movement docket, and it's only if the statute in this regard is complied with that constructive discover of such a motion is frequented upon the adverse celebration. So during the absence of possibly real or constructive recognize from the proceedings that resulted during the rendition of judgment versus him, we predict defendant showed realistic excuse read more for his absence; Additionally, he exhibited meritorious defenses to plaintiff's cause of action, and we are unsuccessful to discover how plaintiff could be materially prejudiced by granting defendant a fresh trial. ...
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