Jackson v. Napier, 15873
| Decision Date | 18 October 1957 |
| Docket Number | No. 15873,15873 |
| Citation | 307 S.W.2d 833 |
| Parties | Atty M. JACKSON, Appellant, v. E. W. NAPIER et al., Appellees. |
| Court | Texas Court of Appeals |
Stayton M. Bonner, Wichita Falls, for appellant.
C. M. Crowell and E. W. Napier, Wichita Falls, for appellees.
From a judgment vesting in E. W. Napier and C. M. Crowell and undivided one-third interest in certain property owned and claimed by Atty M. Jackson, the said Atty M. Jackson appeals.
Appellant was made a defendant in a suit brought by her former husband against J. A. McCarty and C. E. Peterson for an accounting, for a money judgment, and for an interest in certain leasehold estates in the names of McCarty and Peterson, the leasehold interests and money for which recovery was sought being community property of that plaintiff and appellant. The appellees in this suit had for several years been attorneys for appellant, and appellant executed and delivered to them an instrument purporting to convey, in consideration of legal services rendered and to be rendered, one-third of her interest in the subject matter of that suit. The attorney-client relationship between appellees and appellant was terminated in 1955. On May 12, 1955, appellees filed a plea of intervention in the suit, alleging ownership in one-third of appellant's interest in the subject matter and praying that such one-third interest be decreed to them.
On March 18, 1957, appellees filed what was termed 'their first supplemental petition,' which was endorsed 'Petition for Severance and Declaratory Judgment,' and on the same day they forwarded to appellant by registered mail a copy of that pleading along with a letter containing this sentence: 'We are asking the court to hear this matter on March 30, 1957, at 10:00 A.M.' The pleading asked that the cause of action asserted in the plea of intervention be severed from the main cause and that judgment be rendered declaring appellees' rights under the purported conveyance and decreeing to them one-third of the interest of appellant in the subject matter of the main suit.
On March 30 judgment was rendered severing the cause of action from the main suit, and decreeing to appellees the interest claimed in their plea.
The decree was filed and entered on April 19. No notation was made on the court's docket of the rendition or entry of the judgment, and there is no indication that appellant knew the trial had been held until she received a copy of the judgment, which appellees mailed to her on April 19. On April 25 appellant filed a motion for a new trial, alleging that she 'has a meritorious defense against the alleged cause of action in the intervenors supplemental petition in that it was the understanding and intention of both this Defendant and Intervenors that the contract between them and referred to in Intervenors' Supplemental Petition not include the property which is the subject matter of this suit and if such contract should be construed to cover such interest, then the subject matter of the main suit was included therein by a mutual mistake of the parties.' This motion was overruled and that ruling is assigned as error.
Rule 245, Texas Rules of Civil Procedure, provides that * * *'
Rule 330, sub. (b), provides that in certain counties, of which Wichita is one, 'On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of eitehr party, or on the court's own motion with notice to the parties, the court may set any case for trial at any time so as to allow...
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Plains Growers, Inc. v. Jordan
...a local rule requiring notice of a setting. See Phillips v. Hopwood, Tex.Civ.App., 329 S.W.2d 452 (wr. ref. n.r.e.); Jackson v. Napier, Tex.Civ.App., 307 S.W.2d 833 (no writ). It also appears that a local custom of giving notice may have developed in some counties. See Peaslee-Gaulbert Corp......
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Eschrich v. Williamson, 7313
...properly set aside the board's order suspending his license. 1 Tex.Jur. (Ten Yr.Supp.) 110.' (304 S.W.2d at p. 722) See also Jackson v. Napier, 307 S.W.2d 833 (Tex.Civ.App., Fort Worth, 1957, no In In Re Adoption of Armstrong, 371 S.W.2d 407 (Tex.Civ.App., El Paso, 1963, error ref. n.r.e.),......
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Deen v. Deen
...Texas Rules of Civil Procedure and Rule 16, Rules of the District Court of Wichita County. This also denied her due process. Jackson v. Napier, 307 S.W.2d 833 (Fort Worth, Tex.Civ.App. 1957, no writ hist.). This fact alone would require a reversal of the judgment. Failure of a court to foll......
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Middlemas v. Wright, 6299
...a local rule requiring a given number of days written notice of a setting which has been held to raise a due process violation, Jackson v. Napier, 307 S.W.2d 833 (Tex.Civ.App.--Fort Worth 1957, no writ) the appellants were deprived of a representation at the trial that they were entitled to......