Harding v. W. L. Pearson & Co.

• Citation: 48 S.W.2d 964
• Decision Date: 28 April 1932
• Docket Number: No. 1534-5849.,1534-5849.
• Parties: HARDING v. W. L. PEARSON & CO. et al.
• Court: Texas Supreme Court

Page 964

48 S.W.2d 964

HARDING v. W. L. PEARSON & CO. et al.

No. 1534-5849.

Commission of Appeals of Texas, Section A.

April 28, 1932.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by W. L. Pearson & Co. against J. W. Harding and others. An order refusing temporary injunction was reversed, and judgment was rendered that temporary injunction be issued by the Court of Civil Appeals [30 S. W.(2d) 403], and defendant named brings error.

Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Bliss & Daffan and Don A. Bliss, all of San Antonio, for plaintiff in error.

W. R. Montgomery, J. C. Hall, Albert Taylor, and Kennedy Smith, all of Edinburg, for defendants in error.

SHARP, J.

On April 28, 1929, in cause No. 6459, J. W. Harding recovered in the district court of Hidalgo county a judgment against W. E. Callahan, L. D. Crawford, W. L. Pearson & Co., and Hidalgo county, in the sum of $2,073.21, with interest thereon, and an execution was awarded against all of the defendants, except Hidalgo county, and that Callahan & Crawford have judgment over against W. L. Pearson & Co., and that W. L. Pearson & Co. have judgment over against Hidalgo county for that sum.

On April 4, 1930, in cause No. 7760, W. L. Pearson & Co. filed suit in the district court of Hidalgo county to set aside the judgment rendered on the 28th day of April, 1929, in cause No. 6459, alleging several grounds why the judgment aforesaid should be set aside, which will be set out in detail in the course of this opinion.

On April 3, 1930, a restraining order was entered by the court and notice served on Harding to appear on April 22, 1930, and show cause why an injunction should not issue. On that day the trial court heard the application for the issuance of the writ of injunction, and having heard the pleadings and testimony, denied the writ.

From this order Pearson & Co. took out a transcript, but did not have any statement of facts prepared showing the testimony introduced at the hearing, and same was transmitted to the Court of Civil Appeals at San Antonio. On May 28, 1930, that court granted the application for injunction without any bond "to remain in full force and effect until this cause is fully disposed of on its merits." 30 S.W.(2d) 403. A writ of error was granted.

Plaintiff in error contends that the Court of Civil Appeals erred in reversing the judgment of the trial court and rendering judgment that a temporary injunction be issued restraining J. W. Harding from enforcing the judgment rendered in the trial court.

In order to present the issues clearly, it will be necessary to state, in substance, the allegations embraced in the petition of W. L. Pearson & Co. filed in cause No. 7760, seeking an injunction restraining Harding from the enforcement of the judgment rendered in cause No. 6459 on April 28, 1929. It is alleged by Pearson & Co.:

That W. R. Montgomery and W. H. Sadler, as attorneys, had the exclusive management of the case for Pearson & Co. in cause No. 6459. That Montgomery at the time was attending a session of the Legislature, and that Sadler had the exclusive management of the defense in that case. That Sadler at that time was in a state of feeble health, and his mental faculties were temporarily impaired to such an extent that he was unable to properly protect the interests of Pearson & Co., and that the company was absolutely unaware of his condition. That, after the verdict of the jury had been returned into court, the attorney of record for Harding, in cause No. 6459, prepared and procured to be entered the judgment in that cause. That in the judgment entered an agreement was recited that, in the event that judgment should be rendered in favor of the plaintiff against all the defendants, the defendants Callahan & Crawford should have judgment over against the defendant Pearson & Co., and that Pearson & Co. should have judgment over against Hidalgo county.

That the agreement actually entered into at the trial of the case was in no way similar to the judgment procured to be entered in that cause. That the attorney of record for Harding, through accident, inadvertence, or mistake, failed to submit said judgment to any of the attorneys representing the defendants in cause No. 6459, and that Pearson & Co. by virtue of said acts was wholly prevented and was wholly deprived of its rights to interpose whatever defenses it had to the cause of action set forth by Harding in that cause. That Pearson & Co. alleged that on September 22, 1925, it entered into a contract with Hidalgo county for the construction of certain levees in accordance with certain plans, etc., embodied in a written contract, across the lands set out and described in that contract. That it was provided for the construction on the part of Pearson & Co. of parallel levees over the floodway extending in an easterly and westerly direction through said county of Hidalgo to protect the land generally from damages caused by overflows from the Rio Grande river. That Hidalgo county contracted and agreed to furnish all rights of way, and further contracted and agreed to furnish or to acquire by condemnation of titles and easements from the landowners whose property would be affected by the levees, and that Hidalgo county further contracted and agreed to furnish the right of way well ahead of its work. That Hidalgo county informed plaintiff that complete rights of way had been procured, and that Pearson & Co., acting on that information, did construct certain levees in accordance with the contract; that it was agreed at the trial of the cause between defendants Callahan & Crawford, Hidalgo county, and Pearson & Co. that the W. L. Pearson & Co. was in no way liable for the damages, if any, sustained by Harding, and that this agreement and announcement was made in open court in the hearing of the attorney of record for Harding, and that the attorney of record for Harding, in spite of his own knowledge of this agreement, and inadvertent violation of his professional duty to the court, drew up the erroneous judgment. That, after the judgment was entered, Pearson & Co. was never informed of the result until the 22d day of March, 1930, which was due to the mental condition of Sadler. That it was due to the mental condition of Sadler that no appeal was taken from this judgment.

It is further alleged that Harding, during the month of March, 1930, procured the issuance of an execution and placed same in the hands of A. R. Baker, constable in Hidalgo county, Tex., and that he had seized certain property belonging to Pearson & Co., and that this was the first information that Pearson & Co. had of the rendition of the judgment. This petition filed by Pearson & Co. was verified. Harding filed an answer thereto, including among other things, a general demurrer, special exceptions, general denial, etc., but this answer was not verified.

The judgment entered in cause No. 6459 recites that Harding have judgment against Callahan & Crawford, Pearson & Co., and Hidalgo county for the sum of $2,073.21; that Callahan & Crawford have judgment over against Pearson & Co. and that Pearson & Co. have judgment over against Hidalgo county for that sum. The judgment further recites that Callahan & Crawford, Pearson & Co., and Hidalgo county excepted to the judgment rendered therein.

The evidence is undisputed, as shown by this record, that the trial court heard oral testimony touching the issue presented to him as to whether or not he would grant a writ of injunction restraining Harding from the enforcement of his judgment as prayed for.

The rule is well established in this state that to obtain a new trial after the expiration of the term something more than that injustice has been done must be shown. It must appear: (1) That the former judgment was not caused by any negligence on him who seeks to set it aside, but that diligence was used to prevent it; (2) that he had a good defense to the action, which he was prevented from...