Crater Oil Co. v. Voorhies

• Court: Texas Court of Appeals
• Writing for the Court: O'Quinn
• Citation: Crater Oil Co. v. Voorhies, 280 S.W. 849 (Tex. App. 1926)
• Decision Date: 05 February 1926
• Docket Number: (No. 1342.)
• Petition History: writ dism'd
• Parties: CRATER OIL CO. v. VOORHIES.<SMALL><SUP>*</SUP></SMALL>

280 S.W. 849

CRATER OIL CO. v. VOORHIES.^*

(No. 1342.)

Court of Civil Appeals of Texas. Beaumont.

February 5, 1926.

Rehearing Denied February 24, 1926.

Appeal from Jefferson County Court; C. N. Ellis, Judge.

Suit by T. J. Voorhies against the Crater Oil Company. From a judgment for the plaintiff, defendant appeals. Affirmed.

A. M. Huffman, of Beaumont, for appellant.

O'Fiel, Weidemann & Reagan, of Beaumont, for appellee.

O'QUINN, J.

Appellee sued appellant in the county court at law of Jefferson county, Tex., to recover the sum of $260 alleged to be due him on a contract of employment.

The suit was filed August 13, 1924. Appellant filed its original answer September 2, 1924. May 8, 1925, the day the case was tried, appellant filed its first amended original answer, consisting of a general demurrer, some special exceptions, a general denial, and a cross-action against appellee for damages in the sum of $995. On motion of appellee, appellant's amended answer and cross-action was stricken out, on the ground that it came too late. The case then proceeded to trial before the court without a jury, and resulted in a judgment in favor of appellee for $260, and is before us for review on appeal.

Appellant first complains that the court committed reversible error in striking out its amended answer and cross-action. We are somewhat puzzled at the statement of counsel for appellant and appellee relative to the matter. Appellant says positively that the amended answer and cross-action was filed on May 8, 1925, with the permission of the court, and that thereafter when the case was called for trial, and before the parties had announced ready for trial, upon the oral motion of appellee, the court struck out said answer and cross-action, for the reason that same came too late. Appellee earnestly insists that said pleading was filed by appellant on the day of trial without leave of the court, and after announcement of ready by both parties, and after the cause had proceeded to trial on its merits and was stricken out on appellee's motion because coming too late. Both parties cite us to the record and point to the same pages thereof to sustain their contention. The record designated is that containing appellant's bill of exception to the action of the court in striking out said pleading, and the portion of same relevant reads:

"Be it remembered that upon the trial of the above entitled and numbered cause had in this court on the 8th day of May, A. D. 1925, the plaintiff moved the court to strike out the defendant's first amended original answer and cross-action for the reason that same was filed too late, it having been filed on the morning of May 8, 1925, said answer and cross-action being as follows: * * * The court granted said motion and ordered the defendant's first amended original answer and cross-action stricken out, to which action of the court the defendant excepted and objected and presents this its bill of exception No. 1, to the action of the court in striking out said answer and cross-action."

The bill was approved by the court without any qualifications and filed as a part of the record. It will be noted that the bill does not state that the permission of the court was first had to file the pleading, nor does it state that after the filing of the pleading the case was called, and that, before an announcement of ready for trial was had, the motion was made and sustained to strike same from the files of the case. Nowhere in the record is it made to appear that said pleading was filed with the permission of the court and before announcement of ready for trial; in this state of the record, we think it should be held that the court, who knew the exact state of the matter, acted within the law, and that he did not err in sustaining said motion. It was incumbent on appellant to show the facts sustaining his contention in the matter, and its bill of exception to the action of the court nowhere states facts that go to support its contention. The assignment is overruled.

The chief point of disputation between the parties may be thus stated:

Appellant's Contention.

The appellant, Crater Oil Company, contends that it employed T. J. Voorhies on or about the 15th day of June, 1924, to work for it as an oil...