American Hydrocarbon Corporation v. Hickman

• Decision Date: 03 August 1965
• Docket Number: No. 7652,7652
• Parties: AMERICAN HYDROCARBON CORPORATION, Appellant, v. Joe HICKMAN, Appellee.
• Court: Texas Court of Appeals

Page 197

393 S.W.2d 197

AMERICAN HYDROCARBON CORPORATION, Appellant, v. Joe HICKMAN, Appellee.

No. 7652.

Court of Civil Appeals of Texas, Texarkana.

Aug. 3, 1965.

James A. Knox, Arthur M. Albin, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellant.

Jay S. Fichtner, Dallas, for appellee.

CHADICK, Chief Justice.

Joe Hickman, pleading an action upon a written contract for personal services, sued American Hydrocarbon Corporation. Summary Judgment was rendered wherein plaintiff Hickman was awarded $50,000 on the merits of the action and an attorney fee of $5,750.00, together with interest, costs, etc., and defendant American Hydrocarbon Corporation has appealed. The judgment of the trial court is affirmed.

First, the appellant corporation appeals for reversal because the trial judge's initial act in the summary judgment trial allowed American Hydrocarbon Corporation's attorney to withdraw from the case at that crucial stage, and thereafter, in the absence of legal counsel for appellant, proceeded to hear Hickman's motion for summary judgment and rendered judgment thereon unfavorable to the corporation. Preceding the hearing the American Hydrocarbon Corporation had timely filed an answer to Hickman's original petition, but did not file a reply to his motion for summary judgment.

The appellant acknowledges in its brief that established practice required it to allege in its motion for new trial and to submit proof at a hearing thereon tending to show that the absence of legal counsel of its own choice at the trial was not due to its fault or negligence, or that of counsel, that it had a meritorious defense to the cause of action asserted against it, and that failure to request a continuance was excusable under the circumstances.

(1, 2) Labor will be reduced by considering immediately one sector of the general rule appellant acknowledges; that is, the requirement that the motion for new trial contain an allegation that the movant has a meritorious defense to the action plead. Such an allegation in the motion for new trial is a prerequisite to relief from a judgment entered under the circumstances shown. Strode v. Silverman (Tex.Civ.App.1949, wr. ref.), 217 S.W.2d 454; Maeding v. Maeding (Tex.Civ.App.1941, no writ), 155 S.W.2d 991; Farmers Gas Co. v. Calame (Tex.Civ.App.1924, no writ), 262 S.W. 546; McCaskey v. McCall (Tex.Civ.App.1920, no writ), 226 S.W. 432; and Drummond v. Lewis, (Tex.Civ.App.1913, no writ), 157 S.W. 266. Appellant's first and second points of error are based upon assignments One and Two in the Motion for New Trial filed in the trial court. These two assignments, quoted in full, read:

'I. The Trial Court erred in granting Summary Judgment against the Defendant for the reason that there are genuine issues of material fact to be decided in the cause.

'II. The Trial Court erred in rendering Summary Judgment against the Defendant after E. L. Markham, Jr., attorney of record for the Defendant, had been permitted by the Court to withdraw as counsel immediately prior to entry of Summary Judgment, thereby leaving Defendant without counsel and without opportunity to hire new counsel to represent it herein.'

That the quoted material does not contain allegations of a meritorious defense to the cause of action plead by Hickman is patent on inspection.

(3) The above disclosed hiatus, in the motion for new trial rendered it insufficient to present for trial court revision any mistake the trial judge may have made in allowing the corporation's legal counsel to withdraw. The controlling rule is stated in 41 Tex.Jur.2d 360, sec. 154, to-wit:

'A party to a civil case seeking relief from a judgment rendered in the absence of his counsel must show in his motion papers, by averments of fact as distinguished from conclusions of law not only that he was prevented from presenting his case at a proper time through some cause unmixed with negligence on his part, but also that he has a meritorious case.'

Next, the appellant challenges the use and sufficiency of Hickman's sworn original petition as an affidavit in support of his motion for summary judgment. Its' defects as a supporting affidavit are listed as failure of the affidavit to: 1) show the facts stated were within the affiant's personal knowledge, and 2) affirmatively show the affiant competent to testify to the matters embraced therein. Again, it must be noted that the appellant filed no reply in the trial court to Hickman's motion for summary judgment.

(4) The failure of the affidavit in the respects listed above...