Allis-Chalmers Mfg. Co. v. Mitchell
Decision Date | 31 March 1926 |
Docket Number | (No. 2619.) |
Citation | 283 S.W. 560 |
Parties | ALLIS-CHALMERS MFG. CO. v. MITCHELL. |
Court | Texas Court of Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
Action by the Allis-Chalmers Manufacturing Company against Joe Mitchell. From a judgment sustaining defendant's plea in abatement, plaintiff appeals. Reversed and remanded.
Reeder & Reeder, of Amarillo, for appellant.
Paul Speer, of Amarillo, and Carl Gilliland, of Hereford, for appellee.
Because of error in our original opinion we withdraw such opinion and substitute the following:
The attorney for appellant had in his hands for collection certain notes payable to the order of appellant and executed by appellee. Such attorney had prepared a petition for the purpose of filing suit in behalf of appellant and against appellee on said notes. It was the intention of said attorney to file same on that day, July 27, 1925, with the clerk of the district court of Potter county, Tex. On said July 27th, anticipating the filing of said suit by said attorney, the appellee made his appearance in the office of that attorney and proposed some kind of a settlement of said indebtedness to avoid litigation over same. Appellant's attorney and appellee agreed on two propositions of settlement and appellee requested said attorney not to file said suit until he had time to secure a mechanic at Hereford to go and look over his tractors to determine what it would cost to repair them in order that he might decide which of appellant's propositions he would finally accept, and appellant's attorney agreed to such delay. Appellee phoned from Hereford the night of July 27th to appellant's attorney, and stated that he would be delayed on account of rains having fallen in Castro county where his tractors were, and that it would take some time to attend to the matter and reach them, and further requested that he take no action in filing suit in Potter county until July 29th, which appellant's attorney agreed to. On the morning of July 29th, appellee appeared in Amarillo and had appellant's agent served with citations issued out of the two suits in Castro county which he had filed, and then called appellant's attorney over the telephone and informed him that he (appellee) would not accept either of his propositions.
While in Amarillo on July 27th appellee advised with one of the attorneys now representing him in these suits, and, while it does not appear that he closed his employment of said attorney at that time, it does appear that he came into possession of the information that it was necessary for him to file suit or suits he was then contemplating against the appellant before the appellant could file its suit in Potter county in order for him to enforce jurisdiction in the district court of Castro county. Proceeding to Hereford he employed an attorney there, by whom he was fully informed of the necessity for haste in the filing of his suit, and such attorney prepared at his request two petitions for filing in Castro county district court. The appellee carried such petitions to Castro county, filed them with the clerk of the district court of Castro county on July 28th, had citations to issue, and brought them to Amarillo and had them served on appellant's agent as stated above. We wish to say here that in so far as the misrepresentations charged against appellee in securing the delay of the filing of the suit against him by appellant's attorney, the record does not disclose that his attorneys knew of them or had anything to do with his deceiving the appellant's attorney.
Charging that it had been deceived and overreached, appellant's attorney, on July 29th, took the petition in this cause to the clerk of the district court of Potter county, and, advising him of the facts, requested that he file such petition as of date July 27th, the day he intended filing same. There being some question as to the numbering on the file docket, the clerk and attorney agreed that such petition should be filed as of July 28th, which was accordingly done.
When the case was called in the district court of Potter county, appellee appeared and filed his plea in abatement, setting up the pendency of the suits in Castro county at the time of the filing of the suit at bar, and praying the district court of Potter county to abate this suit. In said plea appellee set up the filing of this suit as of right on July 29th, instead of July 28th, which would give him one day priority in the time of the filing of said suits.
In reply to appellee's plea in abatement appellant filed his sworn answer setting up (1) general exception on the ground that no facts are alleged in said plea to show that the district court of...
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