Holliday v. Holliday

• Decision Date: 01 February 1889
• Citation: Holliday v. Holliday, 10 S.W. 690 (Tex. 1889)
• Parties: HOLLIDAY <I>v.</I> HOLLIDAY.
• Court: Texas Supreme Court

10 S.W. 690

HOLLIDAY

v. HOLLIDAY.

Supreme Court of Texas.

February 1, 1889.

Appeal from district court, Brazos county.

J. Earl Preston, for appellant. Ford & Doremus, for appellee.

HENRY, J.

The district court for Brazos county convened the first Monday in September, 1888, which was the 3d day of the month, and its term by law is six weeks. On the 30th day of August, 1888, four days before the court convened, appellant's counsel addressed the following letter to Ford & Doremus, attorneys for plaintiff:

                                    "NAVASOTA, TEXAS, August 30, 1888
                

"Messrs. Ford & Doremus, Bryan, Texas — GENTLEMEN: Please see Judge Henderson, and get his permission to set Holliday vs. Holliday for some day in the last week in September. I shall leave early next week for the Panhandle, to attend court, and cannot tell how long I may be detained up there. Please oblige me.

                                     Yours, truly,      J. E. PRESTON."
                

On the same day plaintiff's counsel wrote defendant's counsel as follows:

                                      "BRYAN, TEXAS, August 30, 1888
                

"J. Earl Preston — DEAR SIR: We are willing to set the Holliday case, if the judge will permit, which we think he will, at any time that will best suit your convenience during the first two weeks of court. We want to try case. Cannot agree to a later date. Or we will let the case come up on regular call as may suit you best.

                              Yours, truly,         FORD & DOREMUS."
                

On the 1st day of September plaintiff's counsel addressed the following letter to defendant's counsel:

                                           "BRYAN, TEXAS, 9, 1, 1888
                

"J. Earl Preston, Attorney at Law — DEAR SIR: Yours to hand, and no doubt written before ours reached you. We are willing to set some day during the first two weeks of court, and will be willing that you suggest the day; otherwise we feel that the case should take its course on the docket. We want to dispose of this case at this term of the court. Yours, &c.,

                                                  "FORD & DOREMUS."
                

September 3, 1888, defendant's counsel, in answer to the last foregoing letter from appellee's counsel, answered as follows:

                                    "NAVASOTA, TEXAS, Sept. 3, 1888
                

"Messrs. Ford & Doremus, Bryan, Texas — GENTLEMEN: I am in receipt of your favor in which you state that you are willing to set the Holliday vs. Holliday for any day during the two first weeks. I have calculated my time closely, and believe I can reach Bryan from the Pan Handle on Saturday, the 15th inst. I may not be able to get there before the arrival of the southbound train in the evening. If you should waive a jury, please make the demand for us. I trust to your well-known candor in this matter. Have written my client about this matter. I believe we can about get through the case Saturday evening. If possible, I will be there Saturday morning.

        "Yours, truly,                                 J. EARL PRESTON."
                

On the same day appellant's counsel wrote him the following letter:

                                     "NAVASOTA, TEXAS, Sep. 3, 1888
                

"Lon Holliday, Esq., Allen Farm, Texas — DEAR SIR: Holliday vs. Holliday will be set for Saturday the 15th inst. Notify witnesses, and recollect it will be next to impossible to get another continuance. If Mr. Harrington will not come, tender his fees. You will also have to pay $5.00 jury fee. Don't neglect this matter.

                                       Yours, truly,    J. EARL PRESTON."
                

Both parties had filed their pleadings at a previous term. Appellant's pleadings, if properly supported by evidence, would have entitled him to recover the land in controversy.

The case, on the 10th day of September, 1888, was tried before a jury, resulting in a verdict and judgment in favor of plaintiff. Neither the defendant nor his attorney appeared at the trial. The judgment recites that the plaintiff appeared by attorney, and the defendant "by his answer filed in this cause." The court charged the jury to find a verdict in favor of plaintiff for the land sued for, and further to find for plaintiff such rents, if any, as the evidence showed him entitled to. The record does not contain a statement of facts. The defendant filed a motion for new trial, and affidavits for and against it were heard by the court. The above correspondence was made part of the motion. It appears from affidavits heard by the court in connection with the motion for new trial that when the case was called on the first day of the court, neither defendant nor his attorney being present, plaintiff's counsel called for a jury in behalf of defendants, as requested; that the case was placed on the jury docket by the court; and that plaintiff's attorney requested the court to set the case for Saturday, September 15th, but the judge declined to do so, stating that the jury docket would be disposed of before that time, and that he did not feel authorized to hold a jury for the trial of this cause. The court set the case for September 10th, and requested the attorney representing the plaintiff to notify defendant's attorney, which was done by the next mail. It also appeared that appellant was at the place of holding the court on the 8th of September, and was then...