Drummond v. Lewis

• Decision Date: 30 April 1913
• Citation: 157 S.W. 266
• Parties: DRUMMOND v. LEWIS.
• Court: Texas Court of Appeals

157 S.W. 266

DRUMMOND v. LEWIS.

Court of Civil Appeals of Texas. San Antonio.

April 30, 1913.

Rehearing Denied May 28, 1913.

Appeal from District Court, San Patricio County.

Action by J. H. Drummond against Steve J. Lewis and another. From a judgment that plaintiff take nothing by his action, he appeals. Reversed, and judgment rendered dismissing the action for want of prosecution without prejudice.

L. H. Browne and C. A. Davies, both of San Antonio, for appellant. D. McN. Turner, of Corpus Christi, for appellees.

TALIAFERRO, J.

On the 21st day of July, 1906, plaintiff, J. H. Drummond, filed suit against Steve J. Lewis and D. McNeill Turner in trespass to try title; on March 18, 1912, D. McNeill Turner disclaimed; on October 14, 1912, on the first day of the court, in the absence of plaintiff and plaintiff's counsel, a judgment was given defendant by default; thereafter, during the same term of the court, on October 23, 1912, a motion was filed by the plaintiff for a new trial and reinstatement of the cause, setting up the grounds that he lived in Jefferson county, Tex., and that he had employed an attorney in San Antonio to attend to his case, and that the said attorney had been attending to the same; that he knew nothing about the case having been dismissed, or judgment taken against him, because of the inability of his attorney to inform him, and appended to his motion the affidavit of his attorney, together with the affidavit of the physician in attendance upon said attorney, showing that, on the 6th day of October, said attorney met with an accident, breaking a rib; that he continued to work until the 11th day of October, when he was stopped by severe pleurisy; that he called in a physician on the 13th day of October, and, for the first time, discovered that he had a broken rib; that by reason of a severe cold, which had settled in his left lung, beneath the broken rib, together with the broken rib itself, the said attorney was unable to attend to business, or to appear and file this motion, and but for such accident the said attorney would have been present and representing him in the said cause. The affidavit of a physician was also attached, verifying the condition of the attorney. The court overruled the motion for a new trial on October 24, 1912, and from that judgment plaintiff prosecutes this appeal.

The above, which is taken from appellant's statement of the nature and result of the case, sufficiently reveals the proceedings had. There are statements made in the briefs of the parties of occurrences at the trial which, not being of record, will not be taken into consideration.

Appellant's only contention is that the trial court, in overruling his motion for a new trial, was guilty of a flagrant abuse of his judicial discretion. To support this contention he cites two cases: Harris v. Musgrave, 72 Tex. 18, 9 S. W. 90, and Alexander v. Smith, 20 Tex. Civ. App. 304, 49 S. W. 916. In the former case the Supreme Court held that it was within the discretion of the trial court to grant a new trial after adjournment of the term, upon proper cause shown. In that case the petitioners alleged, under oath, the fact that their attorney became sick just before the trial so that he could not attend the court; that he had written them of his illness in ample time for them to have employed other counsel if the letter had not miscarried; that they had no knowledge of his condition, or that the case was coming to trial, and that they had a meritorious defense, which they fully stated. In the Alexander Case the motion alleged: That the plaintiff's attorney was ill and unable to attend the court upon the day the case was set for trial. The plaintiff was in court in person, but did not know until the case was called that his attorney could not attend. He was too ignorant himself to conduct his case, and he informed the court that he was too poor to employ other counsel. That he had a meritorious cause of action, and that a dismissal of the cause would subject him to an irreparable loss, the motion revealed by proper allegations. In both cases the courts held that the trial court had abused its discretion, and that the motions for new trial should have been granted, because due diligence and a meritorious cause of action were clearly shown by the allegations in the motions.

But we think no such a case is presented here. The contention, in brief, is that appellant resided in a place remote from the county where the case was pending, and employed an attorney who also resided away from that county; that he relied wholly upon his attorney, who had given the case attention at all former terms of the court; that about 10 days before the case was to be called for trial his attorney was hurt, and on the day before the trial his condition became so serious that he was obliged to go to bed for medical treatment, and was unable to go to San Patricio county to try the case. Appellant was not present at the trial and shows no reason for his absence, except that his attorney had not advised him of the time to attend. No effort is made to show that appellant's attorney was in readiness to attend the court when he was attacked by the sudden illness, nor does it assert that he communicated his condition to his client or to the court, or to the attorney for appellee, or that he made any effort whatever to prevent the case from going to trial in his absence. Neither is it alleged that he was unable to take such precaution. The motion does assert that the appellant has a meritorious cause of action, but such allegation is a mere conclusion of the pleader, as no facts are alleged from which the court can ascertain the merit of the cause, nor are pleadings referred to from which the court could determine the merits thereof.

It has been universally held by our courts that the absence of an attorney, whether by reason of illness or other cause, is not ground for new trial, unless it be shown, not only that the petitioner was...