Adams v. Isbell, 20461
| Decision Date | 06 March 1981 |
| Docket Number | No. 20461,20461 |
| Parties | James M. ADAMS, Appellant, v. Leslie M. ISBELL, Appellee. |
| Court | Texas Court of Appeals |
Gary Gilliland, Dallas, for appellant.
Bill H. Yarborough, Yarborough & Pope, Bedford, for appellee.
Before CARVER, STOREY and STEPHENS, JJ.
Plaintiff, James M. Adams, petitions for review by writ of error of a judgment in favor of defendant, Leslie M. Isbell, which was rendered on a counterclaim after plaintiff had nonsuited his own action. Although we conclude that Adams did not participate in the trial below and, thus, may seek review by writ of error, we affirm because the evidence on the counterclaim supports the judgment rendered by the court.
Adams originally filed this suit against Isbell seeking a determination as to whether Adams and Isbell were partners or were stockholders in a corporation and, in accordance with the court's determination, a declaration of Adams and Isbell's rights in a certain commercial venture. Isbell filed a counterclaim against Adams seeking recovery of the balance due on a promissory note, together with interest and contractual attorney's fees. All issues between the parties were set for trial on July 19, 1979. Adams' attorney appeared in court on that date and requested a nonsuit of Adams' cause of action, which request was granted. Although the record reflects that the court warned counsel for Adams that all issues were set for trial and that Isbell's counterclaim would go to trial, Adams' counsel left the court and neither Adams nor his counsel were present in the courtroom thereafter.
Isbell's counterclaim alleged a promissory note executed by Adams and payable to Isbell in the original principal amount of $48,000, payable in 60 equal monthly installments of $800 each, beginning January 15, 1979, with interest only on default at ten percent (10%) per annum plus reasonable attorney's fees, not to exceed ten percent (10%) of the original principal amount. The counterclaim admitted several payments had been made, thereby reducing the balance due on the note to $45,600, but asserted a default on the payment due April 15, 1979, followed by acceleration, demand, and this suit. Adams did not answer the counterclaim, but relied on Tex.R.Civ.P. 82 as interposing a general denial of the counterclaim for his benefit. Whether this denial was sufficient or not, both Isbell and the trial court treated it as sufficient and proceeded to trial.
At trial Isbell introduced the note into evidence and testified that Adams defaulted on the April 15, 1979, payment and that a demand for payment had been made upon Adams. He also testified regarding the necessity of employing counsel. Based upon this testimony, the trial court rendered judgment for Isbell on his counterclaim in the amount of $45,600, and awarded $1,000 in attorney's fees.
Isbell urges that we should not consider Adams' review by writ of error on the ground that Adams, through his counsel, participated in the trial by being present on the day the case was set; by being present at least long enough to offer and secure the nonsuit; and by being present long enough to receive the court's caution as to the instanter trial of the counterclaim. In summary, Isbell insists that an attorney cannot arrest the course of justice by walking out of the court. We agree that the court properly proceeded to trial on the counterclaim in Adams' absence, but we do not agree that Adams has no right of review by writ of error. In order for Adams to be denied review by writ of error, Adams must have participated in person, or by counsel, in the actual trial of the case. Tex.Rev.Civ.Stat.Ann. art. 2249a (Vernon 1971). Our supreme court held in Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (Tex.1941) that "actual trial" as used in article 2249a means, "the hearing in open court, leading up to the rendition of judgment ...." Since the statement of facts fails to...
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