Gooch v. Sandboe

• Decision Date: 05 February 1934
• Docket Number: No. 9926.,9926.
• Citation: 69 S.W.2d 215
• Parties: GOOCH v. SANDBOE.
• Court: Texas Court of Appeals

69 S.W.2d 215

GOOCH v. SANDBOE.

No. 9926.

Court of Civil Appeals of Texas. Galveston.

February 5, 1934.

Rehearing Denied March 1, 1934.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by A. L. Gooch against F. J. Sandboe. From a judgment sustaining defendant's plea in abatement, plaintiff appeals.

Affirmed.

A. T. Norman, of Houston, for appellant.

GRAVES, Justice.

This is an appeal by the plaintiff below from the following judgment of the trial court sustaining the plea in abatement of the defendant there to the petition of the plaintiff, which in the nature of a bill of review, sought the setting aside of a default judgment entered at a preceding term of the same court in cause No. D-196747, between the same parties, upon averments to the effect that such prior judgment had been entered without notice to him thereof or of the setting even of the cause for trial until too late for him to file a motion for rehearing therein or give notice of appeal therefrom:

"A. L. Gooch vs. F. J. Sandboe. No. A-205099.

"Be it remembered, that on the 17th day of August, 1932, came on to be heard in due order the defendant's plea in abatement and/or to the jurisdiction in the above styled and numbered cause, and came the parties by their respective counsel and announced ready thereon; and such plea having been filed and presented to the court in due time, manner, and form, and with due notice, and the court having heard said plea, the record, and the argument of counsel thereon, and having duly considered the same and being fully advised herein, is of the opinion that the law is with the defendant.

"It is therefore ordered, adjudged, and decreed that said plea be, and the same is, here now in all things sustained, and that all part and portion of plaintiff's alleged cause of action seeking cancellation of the judgment therein complained of be, and the same is, here now in all things stricken and dismissed."

The plea in abatement of the defendant below that was thus sustained contained, among other things, these averments:

"Defendant further alleges that plaintiff's said allegations in reference to his attempted filing of a motion for a new trial and the refusal of the Court to entertain and hear the same because the legal time within which to file same had expired are false and untrue and fraudulently made in an attempt to obtain and invoke the jurisdiction of this Honorable Court; that in truth and in fact, and contrary to plaintiff...