Johnson v. Bevil, 6083

• Decision Date: 14 March 1957
• Docket Number: No. 6083,6083
• Citation: 304 S.W.2d 953
• Parties: W. S. JOHNSON et al., Appellants, v. John R. BEVIL et al., Appellees.
• Court: Texas Court of Appeals

Page 953

304 S.W.2d 953

W. S. JOHNSON et al., Appellants, v. John R. BEVIL et al., Appellees.

No. 6083.

Court of Civil Appeals of Texas, Beaumont.

March 14, 1957.

Rehearing Denied May 15, 1957.

Charles S. Pipkin, Jack Brookshire, Beaumont, for appellants.

James F. Parker, Beaumont, Buchanan & Stover, Silsbee, Clyde McKee, Orange, for appellees.

HIGHTOWER, Justice.

The suit in the nature of trespass to try title was instituted in the district court of Hardin County, Texas, and from an order dismissing defendants' motion for new trial for lack of diligence in the prosecution of such motion the defendants have appealed and by appropriate points contend, primarily, that the action of the trial court was without support in the evidence, and was an abuse of its judicial discretion.

Also before us is an amicus curiae brief asserting this single point:

'The judgment rendered on January 7, 1946, is void, the court lacked jurisdiction to try the case on January 7, 1946, since the appearance day was January 14, 1946, and the affidavit for publication was made before the suit was filed.'

The judgment was by default for plaintiff, John R. Bevil, January 7, 1946. The defendants, twenty-two, or more, non-residents, were cited by publication to appear January 14, 1946. The judgment, of course, was premature. The answer filed by the court appointed attorney, January 7, 1946, was premature. The statement of evidence filed January 7, 1946, was premature. Within the prescribed time, January 6, 1948, motion for new trial and answer were duly filed by defendants.

The plaintiff having died in January, 1953, certain of his children did, on the 2nd day of April, 1956, file their petition suggesting the death of the plaintiff, established proof of their heirship, and moved the trial court to dismiss the defendants' motion for new trial for the reason that the same had not been prosecuted with diligence. The defendants were required to appear and answer to such motion on the 16th day of January, 1956, thirteen days later. On this same day, the defendants did appear and filed their answer which consisted, generally, of their denial of lack of diligence, and moved the court to set their motion for a new trial down for hearing 60 to 90 days hence. Hearing having thus been had on the 16th day of April, 1956, the court did, on the 16th day of May, 1956, dismiss the defendants' motion for new trial for the reason, as stated therein, that the same had not been prosecuted with sufficient diligence. Thereafter, the defendants filed, May 26, 1956, their motion for a new trial on the order first dismissing their first motion for new trial, and on June 15, 1956, they filed their motion to reinstate their motion for new trial, dismissed as aforesaid, and both of these last aforesaid motions having been denied by the court on the 15th day of June, 1956, the defendants contend, on appeal, that the matter should be reversed and remanded for the reasons aforesaid, for a hearing on the merits of their motion for new trial, as filed January 6, 1948. With such contention we concur.

We must disregard, as premature, the point raised amicus curiae, as the principal matter for determination is the propriety of the trial court's action in dismissing the defendant's motion for a new trial for lack of diligence in the prosecution thereof.

Although appellants have brought forward a brief statement of facts, the trial judge was not requested to, and he did not make, findings of fact, or conclusions of law, and looking to the relevant evidence in the light most favorable to appellees, we give the following resume which was just about all the evidence introduced at the hearing:

The original docket sheet introduced by defendants established that they had filed their motion for new trial and answer on January 6, 1948, and citation issued; hearing set for the third Monday in September, 1949; hearing set for third Monday in January, 1950; hearing on motion continued by agreement February 19, 1951. Such was the action reflected by the court docket to have been taken by appellants between January 6, 1948, and April 16, 1956, the date the court dismissed their motion for new trial.

The only evidence of appellees was proof of heirship, as hereinbefore stated, the file date of the judgment of January 7, 1946, the defendants' motion for new trial of January 6, 1948, and an order of the court dismissing from the suit, in 1948, two defendants with whom we are not here concerned. Whereupon the plaintiffs rested.

In addition to the foregoing docket sheet entries, the defendants called James F. Parker under the adverse party rule, who was the only attorney of record for the plaintiffs prior to the hearing to dismiss and who testified that since the motion for new trial had been filed that he had had an agreement with one of the attorneys for appellants, Jack Brookshire, not to take 'this thing up' (the motion for new trial) without notifying him; that some efforts to settle in January of 1948 had been fruitful; that there had been no effort to settle since 1948; that since the filing of their motion for new trial there had been good possibilities, and good prospects, though not in the form of defendants' promise, of working the matter out. Mr. Brookshire's (a defendant attorney) testimony that, 'It had been my idea all along that the matter could be worked out' must be considered as fully supporting the implication of Mr. Parker's testimony to the effect that delay in the litigation was acquiesced in by the plaintiffs, and considered by both attorneys of record to be to the mutual benefit of the parties concerned. Mr. Brookshire further testified that it had never been his intention to abandon the defendants' motion for new trial. Moreover, and by reason of the foregoing, we cannot hold that the death of the original plaintiff, John R. Bevil, though such death may be hurtful to appellees' cause, should be herein considered adversely to appellant, as we hold that they are not chargeable with negligent delay.

The sole contention presented by the plaintiffs for the trial court's determination was that by reason of the period of inactivity between April 2, 1956 and January 6, 1948, the defendants were held to have conclusively abandoned their claim of a right to new trial, and that the dismissal, by reason thereof, was not an abuse of the court's discretion. We cannot agree that the relief, as sought under this motion to dismiss, was entirely a matter of the trial court's discretion, or that the foregoing evidence warranted a finding of lack of sufficient diligence to prosecute as would justify the dismissal of defendants' motion, or...