Barrow, Wade, Guthrie & Co. v. Stroud

• Decision Date: 09 February 1939
• Docket Number: No. 2066.,2066.
• Parties: BARROW, WADE, GUTHRIE & CO. et al. v. STROUD et ux.
• Court: Texas Court of Appeals

125 S.W.2d 365

BARROW, WADE, GUTHRIE & CO. et al. v. STROUD et ux.

No. 2066.

Court of Civil Appeals of Texas. Waco.

February 9, 1939.

Appeal from District Court, Seventy-Seventh District, Limestone County; H. F. Kirby, Judge.

Suit in the nature of a bill of review by Barrow, Wade, Guthrie & Company and others against J. R. Stroud and wife to set aside a judgment of dismissal entered at a prior term of court in an action to recover an accountants' fee. From a judgment dismissing the suit, plaintiffs appeal.

Reversed and remanded for a new trial.

Vinson, Elkins, Weems & Francis, of Houston, for appellants.

A. M. Blackmon, of Groesbeck, for appellees.

ALEXANDER, Justice.

This is a suit in the nature of a bill of review to set aside a judgment of dismissal entered at a prior term of court. The trial court sustained a general demurrer to the bill and dismissed the suit. The plaintiffs appealed.

Barrow, Wade, Guthrie & Company filed the original suit in the district court of Limestone county on July 1, 1931, against J. R. Stroud and wife to recover a fee of $7500, alleged to be due plaintiffs as accountants for having successfully resisted a claim of the Federal Government against the Strouds for additional income tax in the sum of approximately $110,000. The original suit was dismissed on the 5th day of December, 1932, and the plaintiffs in that suit filed this suit on July 1, 1933, to have the judgment of dismissal set aside and to recover their debt as originally prayed for. The bill set out the facts showing a good cause of action to recover the debt, and further alleged, in substance, that shortly after the original suit was filed on July 1, 1931, the defendants' son-in-law and agent approached plaintiffs' agent and opened negotiations for a settlement of the suit and represented to plaintiffs that defendants desired the suit to be held in abeyance pending negotiations for settlement; that on September 23, 1931, plaintiffs' agent wrote the defendants' agent that in accordance with their agreement he had instructed plaintiffs' attorneys to take no further action in the trial of the case pending negotiations for settlement; that about the same time plaintiffs' counsel, who lived in the city of Houston, wrote the clerk of the trial court and advised her that a tentative approach for settlement of the suit had been made and requested the clerk to so advise the trial judge and to request that the case be not set pending negotiation for settlement; that the clerk reported that she had taken the matter up with the trial judge and the case had not been set for trial but had been left open as requested that the above facts were communicated to counsel for defendants; that thereafter one of the attorneys for the defendants visited the city of Houston, called at the office of the attorneys for plaintiffs and discussed the matter of settling the case, and it was then agreed that no steps would be taken by plaintiffs for the trial of the case until they had heard from counsel for defendants as to whether or not the settlement would go through; that on March 4, 1932, plaintiffs' attorneys wrote the clerk of the trial court that they were still hopeful that the case could be settled without trial, that they were very busy in the trial of some other matters at that time and requested the clerk to advise the trial judge that at an early date counsel for plaintiffs would communicate with counsel for the defendants and arrange, if possible, an agreeable date for trial in the event settlement did not go through; that the plaintiffs and their attorneys relied on the agreements previously made with the defendants and their attorneys and refrained from bringing the case to trial because thereof; that on the 5th day of December, 1932, one of the attorneys for the defendants, who is not now connected with the case, fraudulently caused the suit to be dismissed, in violation of the terms of said agreement, or, in the alternative, that dismissal of said suit was had as the result of mistake on the part of the attorneys for the defendants; that on June 22, 1933, the attorneys for the plaintiffs wrote the clerk of the trial court, requesting that the case be set for trial, and two days thereafter received advice from the clerk for the first time that the suit had been dismissed. Plaintiffs immediately filed this bill of review to have the judgment of dismissal set aside.

An application to set aside a default judgment entered at a previous term of court must show not only a meritorious cause of action or defense, but that the complaining party was prevented from appearing and presenting his cause of action or defense through fraud, accident or mistake wholly unmixed with any negligence on his part. 25 Tex.Jur. 632, 661; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; ...