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which, inside our opinion, should be answered from the destructive. Article 2291, R. C. S. 1925, supplies that: "The clerk shall continue to keep a motion docket where he shall enter each individual movement filed in his courtroom, the names on the get-togethers as well as their attorneys, a brief statement of its character, and the volume of the fit during which it's built if it pertains to a match pending. * * * Notice of a motion within a match pending is given by submitting the movement and its entry during the movement docket in the course of the term. * * *" When we do not deem it important to ascertain whether or not, right after dismissal and prior to reinstatement, the case had the position of "a accommodate pending" in the which means of your statute, nonetheless we have been inclined into the perspective expressed in Hexter v. Pratt (Tex. Com. Application.) 10 S.W.(2d) 692, 694, with reference into a situation With this situation, wherever the court explained: "It [the judgment of dismissal] is just what it purports to be, a determination of an absence of diligence in prosecuting the fit for which it can be stricken from your docket. It effectually put an close to the particular proceeding, but was completely ineffectual to ascertain the merits in the claim therein asserted." Nevertheless, if we presume, Even though we don't so come to a decision, that the situation, right after staying dismissed and ahead of its reinstatement, was "a accommodate pending," in the meaning from the statute, nonetheless, underneath the conditions, defendant wasn't frequented with statutory or constructive notice on the proceedings, since no motion to reinstate was ever filed or entered upon the motion docket, and it's only in the event the statute With this respect is complied with that constructive observe of such a movement is frequented upon the adverse party. So inside the absence of either actual or constructive detect from the proceedings that resulted from the rendition of judgment versus him, we think defendant showed fair excuse for his absence; Moreover, he exhibited meritorious defenses to plaintiff's reason behind action, and we fall short to discover how plaintiff could be materially prejudiced by granting defendant a different demo. ...
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