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which, within our viewpoint, should be answered in the destructive. Post 2291, R. C. S. 1925, gives that: "The clerk shall keep a motion docket by which he shall enter each movement submitted in his court docket, the names of your parties and their Lawyers, a quick assertion of its character, and the amount of the fit by which it's created if it pertains to a match pending. * * * Detect of the motion in the fit pending is specified by submitting the movement and its entry in the motion docket in the course of the expression. * * *" While we don't deem it important to ascertain whether, right after dismissal and before reinstatement, the case had the status of "a fit pending" in the meaning on the statute, still we are inclined on the perspective expressed in Hexter v. Pratt (Tex. Com. Application.) ten S.W.(second) 692, 694, with reference to some circumstance Within this condition, the place the court docket explained: "It [the judgment of dismissal] is precisely what it purports to become, a perseverance of an absence of diligence in prosecuting the fit for which it's stricken in the docket. It effectually set an end to the particular proceeding, but was solely ineffectual to ascertain the deserves of the claim therein asserted." Nevertheless, if we believe, although we don't so choose, that the case, immediately after currently being dismissed and in advance of its reinstatement, was "a fit pending," within the indicating of your statute, nevertheless, under the click here instances, defendant wasn't visited with statutory or constructive see of the proceedings, due to the fact no motion to reinstate was at any time submitted or entered upon the motion docket, and it's only once the statute Within this regard is complied with that constructive recognize of such a motion is frequented on the adverse get together. So in the absence of either actual or constructive notice with the proceedings that resulted during the rendition of judgment towards him, we think defendant showed sensible justification for his absence; furthermore, he exhibited meritorious defenses to plaintiff's reason behind action, and we fail to see how plaintiff may be materially prejudiced by granting defendant a new trial. ...
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