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which, inside our viewpoint, ought to be answered within the unfavorable. Write-up 2291, R. C. S. 1925, presents that: "The clerk shall preserve a motion docket in which he shall enter each individual movement filed in his courtroom, the names with the get-togethers and their Lawyers, a short statement of its mother nature, and the number of the suit by which it is actually made if it relates to a fit pending. * * * Detect of the motion in a accommodate pending is offered by filing the motion and its entry from the movement docket in the course of the time period. * * *" Whilst we do not deem it necessary to determine irrespective of whether, right after dismissal and ahead of reinstatement, the situation had the status of "a accommodate pending" within the meaning of your statute, yet we have been inclined towards the look at expressed in Hexter v. Pratt (Tex. Com. App.) 10 S.W.(2d) 692, 694, with reference to your case in this affliction, the place the court said: "It [the judgment of dismissal] is precisely what it purports to be, a perseverance of a lack of diligence in prosecuting the fit for which it really is stricken from your docket. It effectually set an conclude to The actual continuing, but was completely ineffectual to find out the deserves of your declare therein asserted." However, if we suppose, although we do not so make your mind up, that the situation, immediately after staying dismissed and ahead of its reinstatement, was "a go well with pending," in the this means in the statute, nonetheless, underneath the circumstances, defendant wasn't frequented with statutory or constructive notice of the proceedings, simply because no motion to reinstate was ever submitted or entered upon the motion docket, and it's only if the statute In this particular regard is complied with that constructive detect of this kind of movement is frequented upon the adverse party. So inside the absence of possibly true or constructive see of the proceedings that resulted while in the rendition of judgment towards him, we expect defendant confirmed fair justification for his absence; Also, he exhibited meritorious defenses to plaintiff's reason for motion, and we fall short to determine how plaintiff could be materially prejudiced by granting defendant a new trial. ...
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