Dalhart Real Estate Agency v. Le Master

• Decision Date: 05 November 1910
• Citation: 132 S.W. 860
• Parties: DALHART REAL ESTATE AGENCY v. LE MASTER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 860

132 S.W. 860

DALHART REAL ESTATE AGENCY v. LE MASTER.^†

Court of Civil Appeals of Texas.

November 5, 1910.

Rehearing Denied December 3, 1910.

Appeal from District Court, Dallam County; Durell Miller, Special Judge.

Suit by Mike C. LeMaster against the Dalhart Real Estate Agency. From a judgment for plaintiff, defendant appeals. Affirmed.

Gustavus, Bowman & Jackson and Chauncey & Carter, for appellant. Cooper & Stanford and Tatum & Tatum, for appellee.

DUNKLIN, J.

This is the second appeal in this case; our decision of the former appeal appearing in 121 S. W. 185.

The present appeal is by the Dalhart Real Estate Agency, defendant in the trial court, from a judgment rendered in favor of Mike C. LeMaster, plaintiff, perpetually enjoining defendant from collecting a judgment theretofore recovered by said Dalhart Real Estate Agency against LeMaster. The trial was by the court without a jury, and the trial judge filed the following findings of fact and conclusions of law as the basis of the judgment rendered:

"Conclusions of Fact.

"(1) On February 3, 1906, defendants herein filed their first original petition in the district court of Dallam county, Tex., against Mike C. LeMaster, a nonresident of Texas, setting up a claim for $1,024 damages on account of LeMaster's alleged breach of a contract to purchase lands from plaintiffs; the damage set up being the amount plaintiffs would have received as commissions on the sale of certain lands which they had listed with them if the sale had gone through.

"(2) On February 3, 1906, citation was issued on said original petition and served the same day on defendant, Mike C. LeMaster, at Dalhart, Tex.; the citation did not state the date of filing of the petition, nor did it command the defendant to appear and answer the petition.

"(3) On March 27, 1906, the Dalhart Real Estate Agency filed their first amended, original petition, which is substantially the same as the original petition, except that it sets forth the correspondence ending in LeMaster's acceptance of the terms and agreement to buy, and concludes with a prayer for damages in the sum of $1,786 instead of $1,024, as in the original petition.

"(4) On April 13, 1906, the Dalhart Real Estate Agency took judgment by default in said cause on said amended petition for the sum of $1,763; no answer or appearance having been made by Mike C. LeMaster.

"(5) On February 1, 1907, execution was issued to Dallam county and returned the same day by the sheriff of said county, no property found.

"(6) On September 22, 1908, execution was issued to Potter county, Tex., but said execution showed no return.

"(7) On October 9, 1908, the Dalhart Real Estate Agency made affidavit and application for garnishment after judgment, against the Amarillo National Bank, and writ of garnishment was duly issued against said bank, and served on said bank on October 14, 1908, commanding the bank to appear and answer what, if anything, it was indebted to Mike C. LeMaster, or what funds, if any, of his it had in its possession.

"(8) When the original suit was filed against Mike C. LeMaster, he resided at Altus, Okl., and when he was served with the citation above mentioned, he was passing through Dalhart, Tex., on his return to Altus. After being so served, and within a few days thereafter, he employed an attorney named W. T. McConnell, who also resided at Altus, to represent him in said cause. The citation commanded him to appear March 26, 1906. He and his attorney, W. T. McConnell, left Altus, Okl., together, with the intention of attending court at Dalhart, Tex., on the appearance day, but at Quanah, the said Mike C. LeMaster was detained on business and McConnell, his attorney, proceeded to Dalhart to represent him.

"(9) Later McConnell sent a telegram to LeMaster at Quanah, Tex., reading substantially as follows: `Case abandoned; you can go home.' LeMaster did not produce this telegram at the trial, but testified that he had looked for it and could not find it. He testified to its contents from memory.

"(10) LeMaster, on receipt of the said telegram, returned to his home at Altus, Okl., and in three or four days thereafter McConnell returned and told LeMaster that the case was all off; that it had been abandoned by the Dalhart Real Estate Agency; and that he, LeMaster, was through with it.

"(11) LeMaster believed the statements and representations made to him by his said attorney, McConnell, and took his advice, paid him his fee, and dismissed the matter from his mind.

"(12) LeMaster first learned of the rendition of the judgment in the original cause when the writ of garnishment was served on the Amarillo National Bank about October 14, 1908. He at that time owned stock in the Amarillo National Bank. One Hankins, an attorney at law at Quanah, Tex., accompanied McConnell to Dalhart, Tex., to represent LeMaster at the March term of the district court, 1906, but this was not at the time, nor for a year later, known to LeMaster; he paid Hankins no fee.

"(13) On cross-examination it appeared that LeMaster was not familiar with the legal terms, and that if the telegram from McConnell had said, `Court without jurisdiction; you can go home,' it would have made practically the same impression upon him as if it had said, `Case abandoned; you can go home.' He seemed positive, however, that the telegram said, `Case abandoned; you can go home.'

"(14) W. B. Chauncey, a member of the firm known as the Dalhart Real Estate Agency, talked with LeMaster on February 3, 1906, when...