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which, in our feeling, really should be answered while in the unfavorable. Posting 2291, R. C. S. 1925, supplies that: "The clerk shall maintain a movement docket during which he shall enter each individual motion submitted in his courtroom, the names of the get-togethers as well as their Lawyers, a quick assertion of its mother nature, and the number of the suit during which it really is made if it pertains to a accommodate pending. * * * Notice of the motion within a match pending is presented by filing the motion and its entry during the motion docket through the phrase. * * *" Although we do not deem it essential to determine regardless of whether, right after dismissal and just before reinstatement, the case experienced the status of "a suit pending" throughout the indicating of your statute, still we've been inclined to the check out expressed in Hexter v. Pratt (Tex. Com. Application.) ten S.W.(second) 692, 694, with reference to some scenario During this affliction, wherever the court reported: "It [the judgment of dismissal] is precisely what it purports to be, a resolve of an absence of diligence in prosecuting the suit for which it is actually stricken from the docket. It effectually set an close to The actual continuing, but was solely ineffectual to find out the merits of the claim therein asserted." On the other hand, if we assume, although we don't so decide, that the situation, soon after getting dismissed and before its reinstatement, was "a suit pending," inside the indicating on the statute, nevertheless, underneath the conditions, defendant was not frequented with statutory or constructive see of your proceedings, for the reason that click here no movement to reinstate was ever filed or entered on the movement docket, and it is just in the event the statute Within this respect is complied with that constructive recognize of this type of movement is visited on the adverse get together. So during the absence of both actual or constructive see with the proceedings that resulted while in the rendition of judgment towards him, we predict defendant showed fair justification for his absence; On top of that, he exhibited meritorious defenses to plaintiff's reason behind motion, and we are unsuccessful to find out how plaintiff could possibly be materially prejudiced by granting defendant a brand new demo. ...

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