Alexander v. Smith
| Decision Date | 04 January 1899 |
| Citation | 49 S.W. 916 |
| Court | Texas Court of Appeals |
| Parties | ALEXANDER v. SMITH.<SMALL><SUP>1</SUP></SMALL> |
On April 27, 1896, the plaintiff, Max Alexander, instituted this suit in the district court of Harris county against the Galveston, La Porte & Houston Railway Company and the defendant in error, L. J. Smith, to recover $15,000 actual and $5,000 exemplary damages for personal injuries alleged to have been inflicted upon him by the negligence of said defendants. Afterwards, on November 28, 1896, the plaintiff dismissed his action against the railway company, and continued it as to the other defendant. On October 26, 1897, the cause was reached in its order on the call of the docket for trial, and, neither the plaintiff nor his attorney of record appearing, it was dismissed for want of prosecution. On October 27, 1897, during the term of the court at which said judgment of dismissal was entered, the plaintiff filed his motion in said court, asking that the judgment be set aside, and the cause reinstated. Afterwards, on November 9, 1897, before the district court adjourned, he filed his supplemental motion for new trial. These motions, together with the affidavits attached to them, aver and show prima facie that plaintiff has a good and valid cause of action against defendant L. J. Smith, as shown by his pleadings. They allege and show without contradiction that at the time the cause was called for trial, and the order of dismissal entered, that A. W. Boyd, Esq., the only attorney of plaintiff in the case, was, on account of a serious spell of sickness, absent from court, and detained in the town of Anderson, Grimes county, Tex.; that said attorney was unable, on account of his illness, to appear and represent the plaintiff in said suit, but that, if it had not been for his sickness, he would have been present, and prosecuted for plaintiff his action for judgment; that plaintiff was present in court when his case was called for trial, but did not, until then, know of the absence of his attorney; that he was too poor to retain another attorney to represent him in the cause; that he was ignorant of matters pertaining to judicial proceedings, and had to and did rely solely upon his said attorney to represent him upon the trial of his action, and that he fully expected him to be present and do so when the cause was called for trial; and that his action would be barred by the statute of limitations unless the judgment of dismissal was set aside, and the cause reinstated. The trial court, upon hearing of the motions, overruled them, and from the judgment dismissing his cause of action the plaintiff prosecutes this writ of error.
Boyd & Thompson, for plaintiff in error. W. S. Hunt, for defendant in error.
NEILL, J. (after stating the facts).
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