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which, inside our belief, needs to be answered while in the negative. Write-up 2291, R. C. S. 1925, offers that: "The clerk shall retain a motion docket in which he shall enter each motion submitted in his courtroom, the names from the events as well as their Lawyers, a brief assertion of its character, and the number of the go well with in which it is actually built if it relates to a accommodate pending. * * * See of a movement in a very go well with pending is given by filing the motion and its entry within the motion docket during the term. * * *" Whilst we do not deem it important to find out regardless of whether, right after dismissal and ahead of reinstatement, the case had the position of "a accommodate pending" within the that means on the statute, however we have been inclined towards the perspective expressed in Hexter v. Pratt (Tex. Com. Application.) 10 S.W.(2nd) 692, 694, with reference to your case Within this condition, in which the court stated: "It [the judgment of dismissal] is exactly what it purports to become, a resolve of an absence of diligence in prosecuting the accommodate for which it is stricken from the docket. It effectually set an conclusion to the particular proceeding, but was completely ineffectual to determine the merits with the declare therein asserted." Even so, if we think, Despite the fact that we do not so determine, that the case, just after becoming dismissed and in advance of its reinstatement, was "a go well with pending," within the that means on the statute, but, beneath the situations, defendant wasn't visited with statutory or constructive see from the proceedings, because no movement to reinstate was at any time submitted or entered on the movement docket, and it is just once the statute On this respect is complied with that constructive discover of such a movement is visited on the adverse bash. So while in the absence of both precise or constructive recognize in the proceedings that resulted during the rendition of judgment from him, we predict defendant showed affordable excuse for his absence; furthermore, he exhibited meritorious defenses to plaintiff's reason behind action, and check here we fall short to discover how plaintiff can be materially prejudiced by granting defendant a new demo. ...
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