Finley v. Finley

• Decision Date: 01 December 1966
• Docket Number: No. 254,254
• Citation: 410 S.W.2d 818
• Parties: Leon FINLEY, Appellant, v. Charlie FINLEY et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 818

410 S.W.2d 818

Leon FINLEY, Appellant, v. Charlie FINLEY et al., Appellees.

No. 254.

Court of Civil Appeals of Texas Tyler.

Dec. 1, 1966.

Rehearing Denied Jan. 12, 1967.

Second Rehearing Denied Feb. 2, 1967.

Patterson, McDaniel, Moore & Browder, Bennett B. Patterson, Ross D. Margraves, Jr., Houston, for appellant.

A. R. Mason, Angleton, for appellees.

MOORE, Associate Justice.

This is an appeal by writ of error from a judgment of dismissal. Appellant, Leon Finley, filed suit in the court below for a bill of review, seeking to review a judgment of partition which had theretofore been entered by the trial court on January 19, 1965. When the matter came on for trial, appellant failed to appear and as a result the trial court entered judgment against him dismissing his suit for the want of prosecution, reciting as follows:

'ON THIS THE 16th day of August, 1965, came on to be heard the petition on Bill of Review filed herein by Defendant, Leon Finley, and came the Plaintiffs in person, and by their attorney of record, and the Defendant, though duly, legally and regularly notified of the date and time of such hearing, as required by the rules of this court, failed to appear and wholly made default; and a jury being waived and matters of facts and things in controversy being submitted to the court in their regular order and it appearing to the court that Plaintiffs are entitled to the following judgment; it is ORDERED, ADJUDGED and DECREED by the court that the petition on Bill of Review filed herein by the Defendant, Leon Finley, be and the same is hereby dismissed for want of prosecution. * * *'

Appellant did not file a motion for new trial, nor did he make any effort to have the trial court reinstate the case on the docket. In fact, no action was taken in the matter until February 4, 1966, at which time appellant filed this petition for writ of error.

The record is before us by transcript only, without a statement of facts.

While appellant's points of error are rather general in nature, we gather that he seeks a reversal on the ground that the trial court abused his discretion in dismissing his petition for Bill of Review.

The well settled rule governing dismissals for want of prosecution is that, even without statutory authority, a court has the right to dismiss a suit for failure to prosecute with due diligence. The matter rests in the sound discretion of the trial court. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85.

Unless it be shown that the exercise of that power has been abused, such action is not subject to revision on appeal. The burden of proof rests upon a litigant asserting abuse of discretion to develop the transaction and affirmatively shows such abuse of discretion. In other words, the presumption is that the action of the trial court in this case was just and proper, and unless there is some testimony showing to the contrary, the appellant is not entitled to relief in this court. Hall v. City of Austin, 31 Tex.Civ.App. 626, 73 S.W. 32.

Since appellant failed to offer any testimony in this connection and since there is nothing in the face of the record showing an abuse of discretion, it is our conclusion that the appellant has failed to sustain his burden of proof.

Moreover, we think the record affirmatively shows a lack of diligence on the part of appellant. Approximately three weeks prior to the date the cause was set for trial, appellant's attorney withdrew from the case. At the time of trial, he had no attorney of record. Thus, the record shows that appellant not only failed to appear at the hearing, but failed to employ an attorney to represent him. For this reason, we think the record affirmatively shows a lack of diligence on the part of appellant.

Dismissal is the proper order when one fails to prosecute his claim with reasonable diligence. First Nat. Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085.

Appellant's brief contains numerous other points of error complaining of the judgment of partition dated January 19, 1965. We are at a loss to understand how, on this appeal, this court would have any jurisdiction over that judgment. The petition for writ of error describes only the judgment dated August 16, 1965, dismissing appellant's bill of review. As we understand the law, the scope of our review on this appeal is limited to a review of the judgment complained of in the petition. Rule 360, Texas Rules of Civil Procedure; Fouga v. Fouga, 221 S.W. 117 (Tex.Civ.App.) In any event, however, we would be without jurisdiction over the partition judgment in view of the fact that the petition for bill of review was not filed within six months after the date of the rendition of the judgment of partition. Article 2255, Vernon's Ann.Tex.Civ.St. Consequently, this court is without jurisdiction to pass upon the assignments of error leveled at that judgment.

For the reasons stated, we have concluded that no reversible error is shown and the judgment must be affirmed.

Affirmed.

ON MOTION FOR REHEARING

In his motion for rehearing, the appellant urges that we erred in holding that the appeal related only to that portion of the judgment dated August 16, 1965, dismissing the bill of review, because the judgment not only dismissed the bill of review for lack of prosecution but also permanently enjoined appellant from interfering with, or going on, the lands awarded appellees in the partition decree. Appellant seems to...