O'NEIL v. MacK Trucks, Inc.

551 S.W.2d 32 (1977)

Truman O'NEIL, Individually and d/b/a Mesa Mack Sales, Petitioner, v. MACK TRUCKS, INC., and Mack Financial Corporation, Respondents.

No. B-5869.

Supreme Court of Texas.

March 9, 1977.

Clark, Thomas, Winters & Shapiro, Barry K. Bishop and Donald S. Thomas, Jr., Austin, W. Dean Hester, El Paso, for petitioner.

Stubbeman, McRae, Sealy, Laughlin & Browder, Harrell Feldt and David K. Brooks, Midland, for respondent.

PER CURIAM.

It has been called to our attention by Motion to Recall Mandate filed by Mack Trucks, Inc., and Mack Financial Corporation, Respondents, that the mandate recites that the judgments of the District Court and of the Court of Civil Appeals are reversed, and judgment rendered for Petitioner Truman O'Neil, Individually and d/b/a Mesa Mack Sales.

This recitation is in error; the motion is granted and the mandate is recalled.

As stated in the opinion delivered by this Court on September 29, 1976, the only matter brought forward by Petitioner O'Neil in his application for writ of error was the severed cause involving the award by the trial court of foreclosure of a lien on a 4.09 acre tract of land claimed by O'Neil as his business homestead. As to this severed cause, the Court of Civil Appeals had reversed the judgment of the trial court and remanded the cause. 533 S.W.2d 832. Pursuant to Petitioner O'Neil's application for writ of error, this Court reversed the judgments of the trial court and of the Court of Civil Appeals in this severed cause and rendered judgment for Petitioner O'Neil. 542 S.W.2d 112.

The judgment of the trial court was otherwise affirmed by the Court of Civil Appeals and this portion of the judgment of the Court of Civil Appeals was not before this Court. There was not, and could not *33 have been, any adjudication by this Court with respect to its validity or effect.

Accordingly, the Motion of Mack Trucks, Inc. and Mack Financial Corporation to recall the mandate issued by this Court under date of November 15, 1976 is granted. The mandate will be reissued to correctly reflect the action of this Court pursuant to its opinion delivered September 29, 1976, namely, that of reversing the judgments of the trial court and of the Court of Civil Appeals in the severed cause brought forward by writ of error involving the foreclosure of a lien on a 4.09 acre tract of land claimed by O'Neil as his business homestead. As to this, judgment was rendered for Petitioner O'Neil. In all other respects the judgment of the trial court affirmed by the Court of Civil Appeals is unaffected.