Chapa v. Wirth
| Decision Date | 10 February 1961 |
| Docket Number | No. 3581,3581 |
| Parties | Felix A. CHAPA, Jr., Appellant, v. Evelyn Pennington WIRTH et al., Appellees. |
| Court | Texas Court of Appeals |
Wolff & Wolff, San Antonio, for appellant.
Clyde E. Johnson, Harvey L. Hardy, San Antonio, for appellees.
On January 27, 1960, Felix A. Chapa, Jr., filed suit in the nature of a bill of review against Evelyn Pennington Wirth, Ferd L. Wirth, Sarah E. Pennington Rudd and her husband Barry Rudd, a partnership, doing business as Security Finance Company, hereinafter referred to as Security, seeking to reinstate a suit he had filed against them on July 26, 1955, which had been dismissed on September 19, 1958, for want of prosecution. The court granted the defendants' motion for summary judgment and the plaintiff has appealed, contending the court erred because there are genuine issues of material facts.
In support of its motion for a summary judgment Security relied on plaintiff's petition, the official civil minutes of the court, all papers filed in both causes, an affidavit from the district clerk and one from Security's attorney who represented it in the case that was dismissed. In resisting the motion Chapa relied on his pleadings, his affidavit and an affidavit by the attorneys who represented him in filing the original suit.
Chapa contends the fact issues made by the pleadings and evidence are (1) his and his attorneys' diligence in prosecuting the original case; (2) whether he had been guilty of laches in filing the present suit; (3) whether he has a meritorious cause of action in the original suit and (4) whether he or his attorneys had notice that the original case was dismissed before the time for filing a motion for new trial elapsed.
Chapa's affidavit shows: that he moved to Louisville, Kentucky in May, 1958, and is still residing there; that he never received notice that his original suit would be or had been dismissed until his attorneys informed him in 1959; that he was unable to raise the necessary funds to properly prepare his case for trial because he had been forced to defend about 30 criminal charges and several civil suits; that while he was attending his father's funeral in San Antonio he was arrested at the funeral home on an indictment growing out of a transaction which occurred several years prior thereto and that he believes he and his lawyers have been diligent in all matters connected with his case.
The affidavit of one of Chapa's attorneys shows that he filed the original suit for Chapa on July 26, 1955; that it was his understanding the clerk was supposed to send out notices when a case was set on the dismissal docket and that he had a right to rely on such notice; that he received no such notice; that he and Chapa had a disagreement in 1959 about another case he was handling and Chapa retained other counsel; that in December, 1959, he was informed the original suit had been dismissed; that Chapa was unable to pay for the necessary services to prepare the case for trial and that he represented Chapa in about 30 other cases from July, 1955, until the latter part of 1959.
The affidavit of Chap's other attorney, who filed the original suit, shows that when Chapa first approached him about filing the original suit he consented to his name being signed to the petition but secured another lawyer to prepare the pleadings and prepare the case for trial and that he had no recollection of ever receiving notices that the original case was put on the dismissal docket.
The affidavit of the district clerk shows that on July 10, 1958, the court ordered 69 cases set down for trial, or for dismissal for want of prosecution, and that Chapa's original suit was one of those cases; that such order was entered in the minutes; that before the...
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