Box v. Associates Inv. Co.

• Decision Date: 17 November 1961
• Docket Number: No. 15924,15924
• Citation: 352 S.W.2d 315
• Parties: Cloyce BOX et al., Appellants, v. ASSOCIATES INVESTMENT COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 315

352 S.W.2d 315

Cloyce BOX et al., Appellants, v. ASSOCIATES INVESTMENT COMPANY, Appellee.

No. 15924.

Court of Civil Appeals of Texas, Dallas.

Nov. 17, 1961.

Rehearing Denied Dec. 15, 1961.

Arthur Mitchell, Austin, for appellants.

Robert R. Cole, Dallas, for appellee.

YOUNG, Justice.

This appeal is from a judgment of the trial court overruling appellants' motion for new trial and exceptions to a judgment of that court against them and in favor of appellee.

On July 31, 1959 appellee brought suit against Cloyce Box and Boyce Box, allegedly doing business as partners under the trade name of Box Auto Sales, on numerous automobile notes for deficiency balances claimed to be due thereon after all credits. This petition was duly answered by the two defendants in verified denials of partnership; or that said partnership had authorized and one to act for them in the execution of the instruments sued upon; claiming bad faith on part of plaintiff in sale of certain collateral attached to the notes, which resulted in any alleged deficiencies; pleading general denial, and also the bar of two-year statute of limitations.

On October 11, 1960 a final judgment was signed and entered by Dallas A. Blankenship, Judge of said Court, reciting in part: 'On the 10th day of October 1960, the above styled and numbered cause came before the Court for trial on the merits, all parties having been duly notified according to term of law, came the plaintiff by its attorney and the defendants came not though having filed written answer with Clerk of Court. The Court, having read the pleadings and having heard evidence and argument of counsel, finds that the material allegations contained in the plaintiff's petition are true and correct and is of the opinion that the plaintiff is entitled to judgment against each of all defendants, both jointly and individually.' The judgment was against both Cloyce and Boyce Box for principal balances remaining due on the various notes in sum of $1350.90, interest to that date of $478,46, or a total of $1829.36 with interest from date of trial at 10% per annum and all costs.

Defendants' attorney in this cause was Arthur Mitchell of Austin, Texas; plaintiff's attorney being Robert R. Cole of Dallas. Said defendants' attorney, upon notification of above entry of judgment, immediately filed motion for new trial stating that such judgment had been entered without notice to appellants; setting forth as grounds the following interchange of letters:

That on August 28th, 1960 he had written to Mr. Cole of his employment as defense counsel in the case; in addition stating 'I would appreciate it if you would give me notice of any of the proceedings in this case.' And on August 31, said attorney for appellants wrote plaintiff's attorney, confirming a notice from the latter that the case had been set for trial on October 10, 1960 at 10 o'clock a. m.; writing further: 'I have this date communicated with my client to determine if he would be available on that date and will correspond with you on this matter;' also observing that the above date of setting was personally satisfactory. On September 6, 1960 Mr. Mitchell addressed the attorney for plaintiff stating that he had received word from his client, Cloyce Box, to effect that said defendant 'would be tied up in Tulsa, Oklahoma on October 10, 1960;' requesting a 'bottom dollar' figure which he could pass on to the defendants for the purpose of settling the case.

On September 13, 1960 the attorney for plaintiff then wrote to Mitchell to effect that the case could be settled for $1500; further stating in such answer: 'I was disappointed to learn that you will not be able to go to trial on October 10, 1960. If it is not possible to settle on the above basis, I will appreciate your early advice as to when it will be convenient to set the case for trial. As you know, it has been pending for more than a year now. Very truly yours, Robert R. Cole.' Without further notice or communication, this defense attorney was notified on October 13, 1960 of the fact that the case had been heard and judgment rendered on October 10, 1960.

Appellants' motion for new trial included all the correspondence above outlined; concluding with allegations 'that this judgment should be set aside in all things and a new trial be granted to them, or in the alternative the case be set upon the docket for trial upon its merits on grounds (1) that a defendant's original answer properly verified has been on file and filed by the attorney for the defendants in behalf of the defendants; and (2) by agreement of the parties through their attorneys, that the case would not go to trial on October 10th as set in view of a prior commitment on the part of the defendants;'

This motion for new trial was overruled by the trial court on November 11th, 1960 entered November 18th; attorney for defendants obtaining notice by copy thereof being mailed to him on November 21st. It contained the recital that plaintiff came by attorney 'but defendants came not although duly notified by the court.' Prior thereto and on November 8th, 1960 defense counsel wrote to the trial court as follows:

'Dear Judge Blankenship: I wondered if you would have had an opportunity to review the motion for new trial filed in the above captioned case by my office and whether or not the matter has been set down for hearing. I am of course anxious to get the judgment heretofore entered by the Court set aside in order that the case can be set down for trial on its merits. I would rather of course have the motion overruled by action of the court than by operation of law in order that I might be able to protect the record for an appeal. However, I am certain that the Court will want to have a hearing on this motion and I wondered if the Court has set a time for hearing on the motion. I would appreciate it very much if you would inform me of the date of...