Smock v. Fischel

Citation207 S.W.2d 891
Decision Date14 January 1948
Docket NumberNo. A-1415.,A-1415.
PartiesSMOCK v. FISCHEL.
CourtSupreme Court of Texas

Roy A. Scott, Kleberg, Eckhardt, Mobley & Roberts, and R. Richard Roberts, all of Corpus Christi, for petitioner.

William B. Moss, of Sinton, and Ward & Brown, of Corpus Christi, for respondent.

HICKMAN, Chief Justice.

David Fischel sued E. Smock for damages for alleged shortage in acreage of two fields of growing beets and one field of growing carrots, which plaintiff had purchased from the defendant. The defendant, in addition to a general denial, alleged that the vegetables had been sold on an acreage basis, and if in fact there was any shortage in acreage, it was due to a mutual mistake, for which he was willing to compensate the plaintiff on an acreage basis. By way of cross-action he alleged that in an entirely different transaction he had sold plaintiff a 200-acre field of growing onions, which plaintiff later refused to accept and pay for, to the defendant's damage in the sum of $25,000. He sought recovery on his cross-action.

Both the defendant and his counsel failed to appear on the day for which the case had been set for trial. The court, in their absence, submitted plaintiff's case to the jury, and upon the jury's findings rendered judgment for plaintiff for $4,086. The court withdrew defendant's cross-action from the jury, and rendered judgment against the defendant thereon. This judgment was affirmed by the Court of Civil Appeals 207 S.W.2d 888.

The facts concerning the circumstances under which the court proceeded to trial in the absence of defendant and his counsel are set out in the opinion of the Court of Civil Appeals, and need not be repeated here. It is sufficient to say that this case had been postponed on two previous occasions, and had again been set for trial on the date upon which it was tried. Defendant's counsel knew at least three days in advance of the date of the trial that another case in which he had been subsequently employed had been set for trial in another county on the same date. Counsel for defendant was in easy reach of both courts, both by automobile and by telephone, yet he made no attempt to adjust the conflict in the setting of these two cases prior to the date of the trial. On the date of the trial he proceeded by automobile to the county seat where the other case was pending, hoping, he said, to secure a postponement of that case; but he was put to trial therein. He then undertook by telephone to contact the judge where this case was pending, but was unable to do so until approximately eleven o'clock in the morning. By that time the court had concluded the trial of the case. We cannot say, as a matter of law, that the court abused its discretion in refusing to grant a new trial.

Under the circumstances, the court committed no reversible error in proceeding to trial on plaintiff's cause of action in the absence of defendant and his counsel. However, the defendant stood in the position of the plaintiff in so far as his cross-action was concerned. Baily v. Trammell, 27 Tex. 317; Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172; Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688.

It is a well-established rule that when a plaintiff fails to appear and prosecute his case, the court can not try the plaintiff's cause of action, but the only remedy is to dismiss the same. Burger v. Young, 78 Tex. 656, 15 S.W. 107; Ware v. Jones,...

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39 cases
  • Freeman v. Freeman
    • United States
    • Texas Supreme Court
    • 29 Julio 1959
    ... ... Colorado Nat. Bank, Tex.Civ.App., 58 S.W.2d 143, no writ history; Burton-Lingo Co. v. Lay, Tex.Civ.App., 142 S.W.2d 448, no writ history; Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891; 15-A Tex.Jur. 386, Dismissals, etc., § 42. In some of the cited cases it is said that the only proper ... ...
  • Villarreal v. Myers
    • United States
    • Texas Court of Appeals
    • 24 Marzo 2022
    ...rule" that a trial court cannot issue a judgment adjudicating the merits where a plaintiff fails to appear. Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948) ("It is a well-establish[ed] rule that when a plaintiff fails to appear and prosecute his case, the court can[]not try the plaintiff'......
  • Shockley v. Payne
    • United States
    • Texas Court of Appeals
    • 3 Julio 1961
    ... ... Gregg, 155 Tex. 537, 289 S.W.2d 746 and their opinion by former Chief Justice Hickman in Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891. We have also read every Court of Civil Appeals case we could find on the subject and studied Sec. 18.04 of ... ...
  • Pioneer Cas. Co. v. Blackwell
    • United States
    • Texas Court of Appeals
    • 8 Octubre 1964
    ... ... See McKelvy v. Barber, Tex.Sup., 381 S.W.2d 59, 62 ...         The court did not 'withdraw' this case from the jury as in, e. g., Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891. The court, instead, received and accepted the verdict. The case did not become a non-jury case. Although ... ...
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