Hartman v. Byrd

• Decision Date: 04 February 1932
• Docket Number: No. 4140.,4140.
• Citation: 47 S.W.2d 659
• Parties: HARTMAN v. BYRD.
• Court: Texas Court of Appeals

47 S.W.2d 659

HARTMAN v. BYRD.

No. 4140.

Court of Civil Appeals of Texas. Texarkana.

February 4, 1932.

Rehearing Denied February 18, 1932.

Error from District Court, Gregg County; Reuben A. Hall, Judge.

Action by R. B. Hartman against D. H. Byrd. To review a judgment and order dismissing his action for failure to prosecute, plaintiff brings error.

Judgment affirmed without prejudice to new suit or legally authorized proceedings.

The writ of error is sued out from an order made by the court dismissing the plaintiff's suit for want of prosecution. On February 7, 1931, the plaintiff filed a suit in the district court against the defendant. The statutory term of the court began on the second Monday in February and was authorized to continue until the second Monday in March. The second Monday in February, 1931, was on the 9th day of February. On February 10, 1931, the appearance day of the February term, the defendant made his appearance and filed his answer in the suit. A special term of court was duly ordered by the district judge, which was to begin on March 9th, and which actually ended on April 18, 1931. At the special term, and on the beginning of the second week thereof, the following order was made by the court and duly entered of record:

"R. B. Hartman vs. D. H. Byrd. 7454.

"In the District Court of Gregg County, Texas.

"16th Day of March, 1931.

"This day came to be heard the above entitled and numbered cause, wherein R. B. Hartman is plaintiff and D. H. Byrd is defendant and the plaintiff, R. B. Hartman having failed to appear and prosecute his said suit, it is therefore considered, adjudged and ordered by the Court that this cause be and it is hereby dismissed at plaintiff's costs for which let execution issue."

On April 25, 1931, and after final adjournment of the special term on April 18th, the plaintiff filed a motion to "reinstate the cause on the docket of the court." The motion set up that notice was not given, and neither the plaintiff nor his attorneys otherwise knew of the calling of the special term. The plaintiff and his attorneys are residents of Fort Worth. The plaintiff further filed on April 27, 1931, a verified motion or application to have the dismissal order vacated and the cause reinstated for trial on the merits. This application sets out at length and in detail grounds which are alleged to be meritorious and constituting good cause for setting aside the dismissal order and reinstatement of the cause. The trial court has not acted on either one of the motions, being filed, as they were, after the final adjournment of the court for the term. The next statutory term of the court would have begun on the first Monday in June, 1931. The petition for writ of error was filed on April 28, 1931. The defendant was served with citation on June 19, 1931. The transcript of the record was duly filed in the Court of Appeals on August 22, 1931.

Zweifel & Tuohy and James B. Watson, all of Fort Worth, for plaintiff in error.

Margaret Clark, of Longview, Charles R. Crum, of Dallas, and McDonald & Grant, of Longview, for defendant in error.

LEVY, J. (after stating the case as above).

The plaintiff in error presents the points in view that (1) the cause, being filed on February 7th, was returnable to the regular statutory term of the court in June, 1931, and neither he nor his attorneys had notice of the calling of the special term of court, and (2) his application shows good cause for vacating the dismissal order and reinstatement of the cause. The motions of April 25th and April 27th must fail of force and effect as motions for vacation of the dismissal order and reinstatement of the cause, because, being filed after the adjournment of the special term at which the dismissal order was made in the cause, they came too late for the trial court to legally act upon them. Article 2232 R. S.; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Green v. Green (Tex. Com. App.) 288 S. W. 406. Therefore the dismissal order made in the cause, being not vacated and not subject to be vacated merely upon motion of the parties, may be considered a final judgment for purposes of appeal. Green v. Green (Tex. Com. App.) 288 S. W. 406.

The statute expressly provides that the citation shall summon the defendant "to appear and answer the plaintiff's petition at the next regular term of the court." Article 2022, R. S. A citation so issued and served, and where the defendant has not appeared and answered the petition of plaintiff, no default could be legally taken against defendant, and the cause would not be subject to trial as against the defendant, at a term of court other than the existing "next regular term of the court." Neill v. Brown, 11 Tex. 17; Meckel v. Bank (Tex. Civ. App.) 256 S. W. 668. But the present suit may not be considered as standing merely in that special situation. The defendant here duly filed his answer to the plaintiff's petition, and as a legal consequence entered his appearance in the cause, on the appearance day of the regular February term of the court 1931....