Hoffman v. Godlin, 3866.
| Decision Date | 11 May 1939 |
| Docket Number | No. 3866.,3866. |
| Citation | 128 S.W.2d 865 |
| Parties | HOFFMAN v. GODLIN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Gregg County; Clarence E. McGaw, Judge.
Action by P. L. Hoffman against Louis Godlin on a note and for moneys alleged to be due upon open account. From a judgment for the defendant, plaintiff appeals.
Reversed and remanded.
Hoffman filed this suit against Godlin to recover $45,103.59, of which amount $14,500 was represented by note executed by Godlin in Hoffman's favor. The balance represented moneys alleged to be due upon open account. An attachment was issued and levied upon an undivided interest in an oil and gas lease upon lands in Upshur County. On July 2, 1938, Godlin answered by general demurrer and general denial. September 24, 1938, Godlin filed a motion praying leave to withdraw his answer. October 12, 1938, the Court granted leave to withdraw same; whereupon, on the same day and in due order of pleading, Godlin filed plea in abatement and answer to the merits. On the same day the Court sustained the plea in abatement. The plaintiff refusing to amend, the suit was dismissed, the attachment set aside and held for naught. The plaintiff appeals.
Grisham & Grisham, of Tyler, for appellant.
Saye & Saye and H. P. Smead, all of Longview, for appellee.
HIGGINS, Justice (after stating the case as above).
In a proper case, the Court, in the exercise of a sound discretion, may permit a defendant to withdraw an answer to the merits and permit such defendant to file a plea in abatement. 1 Tex.Jur. p. 166, sect. 121. However, some good excuse should be shown by the defendant for his failure, in the first instance, to file such plea in due order of pleading. This suit was filed May 23, 1938. Amended petition was filed June 6, 1938. Godlin had discussed the case with his counsel at least three or four times before the filing of his answer to the merits on July 2nd. Counsel testified that at the time he filed such answer he did not have sufficient information to file any other kind, but no excuse is shown for Godlin's failure to fully advise him in the premises at the various conferences theretofore held. We are of the opinion no excuse is shown for the failure to file the plea in abatement in due order, and it was, therefore, an abuse of discretion on the part of the trial court to later permit defendant to withdraw his answer to the merits and plead in abatement. 1 Tex.Jur. p. 166, Sect. 121; Eden v. D. M. Osborne & Co., 14 Tex.Civ.App. 314, 37 S.W. 182. But, if we err in this conclusion, the judgment must nevertheless be reversed.
The evidence shows a mining partnership between Hoffman and Godlin in the acquisition, development and operation of three oil and gas leases upon land in Illinois known as the Garrett, Shannon and Riggs leases. The parties agreed to purchase the Riggs lease for $29,000. Godlin was unable to pay his half of the purchase price and at his request Hoffman paid same, taking Godlin's note therefor in the sum of $14,500 here sued upon. The other leases were owned by Godlin, who conveyed an undivided one half interest therein to Hoffman. Hoffman agreed to drill wells upon the leases. Godlin agreed to furnish the casing, tubing, Xmas trees, tanks, flow lines and separators for the...
To continue reading
Request your trial
-
Mitchell Resort Enterprises, Inc. v. C & S Builders, Inc.
...S.W. 519 (Tex.Civ.App. Fort Worth 1926, writ dism'd); Clamp v. Nolan, 300 S.W. 105 (Tex.Civ.App. San Antonio 1927, no writ); Hoffman v. Godlin, 128 S.W.2d 865 (Tex.Civ.App. El Paso 1939, no writ). Nor is the case one in which the partnership involves a single venture which is completed. Chi......
-
Fowler v. Fowler
...Investment Co. v. Terry, Tex.Civ.App., 42 S.W. 2d 1051; Camden Fire Ins. Ass'n v. Clark, Tex.Civ.App., 69 S.W.2d 463; Hoffman v. Godlin, Tex.Civ.App., 128 S.W.2d 865. In this case the record does not show that leave of the court was asked or granted before filing the plea, nor does it revea......
-
Warner v. Winn
...and not Article 5527, Vernon's Ann.Civ.Stats., is applicable thereto. Clamp v. Nolan, Tex.Civ.App., 300 S.W. 105; Hoffman v. Godlin, Tex.Civ.App., 128 S.W. 2d 865, 32 Tex.Jur. 450, § 149, 463, § The trial court also held as a matter of law that the cost of deepening the Vela No. 2 was an ex......
-
Day v. Grayson County State Bank, 2346.
...notes in favor of Webster would have been permissible. Masterson v. Allen, Tex.Civ.App., 69 S.W.2d 539, point 1, p. 542; Hoffman v. Godlin, Tex.Civ.App., 128 S.W.2d 865. Appellant Day also complains because the court refused to submit to the jury his timely requested issues as to whether th......