Babington v. Gray

• Decision Date: 18 April 1934
• Docket Number: No. 7946.,7946.
• Citation: 71 S.W.2d 293
• Parties: BABINGTON et ux. v. GRAY et al.
• Court: Texas Court of Appeals

71 S.W.2d 293

BABINGTON et ux. v.GRAY et al.

No. 7946.

Court of Civil Appeals of Texas. Austin.

April 18, 1934.

Rehearing Denied May 9, 1934.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

Suit by J. H. Babington and his wife against S. H. Gray and others wherein defendants filed a cross-action.From an order overruling plaintiffs' motion to set aside a default judgment on defendants' cross-action and denying new trial, plaintiffs appeal.

Affirmed.

McGaugh & Darroch, of Brownwood, for appellants.

Critz & Woodward, of Coleman, for appellees.

BLAIR, Justice.

This appeal is from an order overruling the motion of appellants to set aside a default judgment and grant them a new trial, appellants alleging (1) that they had not been served with citation and had not waived citation upon the cross-action of appellees, constituting the basis of the judgment; and (2) that their failure to appear and answer the suit on cross-action was due to the fact that counsel for appellees told them that the cause would not be tried at the term at which the judgment was rendered, but at the subsequent term of said court.

The original suit was filed by appellants in the nature of an injunction proceeding to restrain the sale of a certain 200 acres of land, which appellants claimed to be their homestead, by a trustee, in payment of a debt secured by a deed of trust executed by appellants to the appellee McCord covering 776 acres of land.After the 776 acres were advertised for sale by the trustee under the power given in the deed of trust, appellants carved out of the 776 acres 200 acres which they claimed to have been their homestead at the time the deed of trust was executed; and upon ex parte hearing a temporary writ of injunction or restraining order, just which is not necessary to determine in this appeal, was issued.The sale of the 576 acres remaining was not restrained, and it was sold on the day advertised for sale by the trustee.Appellees filed a motion to dissolve the temporary injunction or restraining order, which after a full hearing was granted, the court finding that the 200 acres was not the homestead of appellants at the time the deed of trust was executed; and the 200 acres was later sold by the trustee under the power given in the deed of trust, appellees being the purchasers at both sales by the trustee, and thus purchasing the entire 776, subject, however, to a first lien indebtedness of some $8,000.

On July 6, 1932, and after appellees had become the purchasers of the land in question from the trustee, they filed their cross-action in the form of a trespass to try title to recover the land, claiming the fee-simple title thereto under the trustee's deeds.A copy of the cross-action was delivered to counsel for appellants, who had appeared in court and obtained the injunction restraining the sale of the 200 acres by the trustee, and who had represented appellants in the trial of the injunction proceedings; and on the same day counsel for appellants signed a waiver of citation on the cross-action, which was filed as a part of the papers in the proceedings.On July 25, 1932, the appellees filed an amended cross-action in lieu of their original, but which in matter and form was identical with the first cross-action filed, in so far as the suit was in the nature of a trespass to try title.No citation was issued on this amended cross-action, but counsel for appellants were on the same day delivered a copy of the amended cross-action.On October 25, 1932, counsel for appellees wrote counsel for appellants that the cause was set for trial on November 17, 1932.This letter was received by counsel for appellants, but they made no reply, and did not appear on the date the case was set for trial.After waiting until 10:20 o'clock, counsel for appellees called appellants' counsel on the phone and asked why they were not present at the trial; and they informed him that some time during the summer they had withdrawn from the case, of which fact neither the court, appellees, nor their counsel had been informed.Appellees' counsel then tried to get in connection with appellants by phone, but was unable to do so because they lived in the country and had discontinued their phone, and concluded that appellants did not care to further prosecute the case.The court then proceeded to trial and judgment in the case; the judgment reciting that citation on the cross-action had been waived by written waiver filed in the court, and that appellants failed to appear and answer said cross-action.AppellantMrs. Florence Babington and another witness testified that counsel for appellees told them that the cause would not be ready for trial until the January term, 1933.Mrs. Babington further testified that a writ of sequestration was issued on the cross-action, which was returnable to the January, 1933, term, and that for that reason she was misled and did not employ other counsel to appear in the case.Appellees' counsel testified that the date of the return of the sequestration was an error; that the same was never served nor returned, or, if served, was never returned into court; that appellants replevied the property, and that he never informed appellants that the case would not be tried until the January term, but that all of his transactions in the matter were had with counsel for appellants, who he did not know had withdrawn from the case until the morning of the trial and judgment; that on the same day he wrote appellants a letter, inclosing a copy of the judgment herein attacked.It was several days before appellants filed the motion for rehearing.Appellant Mrs. Babington testified that she was unable to secure counsel because of illness in her family and because of her inability to employ several attorneys whom she sought to employ.The evidence simply presents a conflict as to whether appellan...