Keller v. Young
| Citation | 186 S.W. 405 |
| Decision Date | 19 April 1916 |
| Docket Number | (No. 972.) |
| Parties | KELLER v. YOUNG et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; E. B. Muse, Judge.
Action by C. L. Young and others against H. F. Keller. Action in the nature of bill of review by defendant to reopen default judgment for plaintiffs. Demurrer to defendant's petition was sustained, and defendant appeals. Reversed and remanded.
Lewis & Roark, of Dallas, for appellant. W. T. Savage and Wood & Wood, all of Dallas, for appellees.
This action is in the nature of a bill of review by appellant, seeking to reopen a judgment formerly rendered in favor of the defendant, appellee, for the sum of $500, and restrain the execution upon the judgment, on account of a levy by a constable of Dallas county upon certain fixtures and stock of goods. A temporary injunction was granted, but upon a hearing at term time the court sustained a general demurrer to the petition, dissolving said injunction. The petition in this case is filed in the same court in which the judgment attempted to be vacated was rendered.
Appellant, Keller, alleges in this suit that prior to the filing of the petition against him by Young the latter had released him "from all causes of action, claim, or demands of every kind and character which he might have * * * growing out of said injuries" by the execution of a release or receipt and by the acceptance of the sum of $2.50, and that at the time that Young accepted said money he understood that the same represented his entire damages; that Young fraudulently concealed the execution of this release from the court on the trial of the cause against him. He also alleges that subsequent to the filing of the petition and personal injury suit, and prior to the time of the rendition of the judgment therein, "he was called over the telephone by parties representing themselves as Attorneys Wood & Wood, on behalf of the defendant, C. D. Young, and an inquiry was propounded to him as to what disposition he intended to make of said suit"; that "he informed said attorneys in great detail the nature of plaintiff's claim, stating to said attorneys that he had settled, compromised and adjusted the claim of plaintiff, if ever he had any, * * * some two months after the alleged accident, * * * and that he held and possessed a receipt or release signed by said C. L. Young to the effect that his entire damages had been fully satisfied, and that the consideration of said receipt and release was $2.50 in money, * * * accepted by Young as a full settlement of his claim"; that the attorneys representing the said Young remarked that that threw a different light upon the subject, and that, if Young had executed a release, he had relinquished his claim, "and further stating, the exact words of which this plaintiff does not remember, but says that it was to the effect, that in view of the release executed by the said C. L. Young, the cause would go no further."
Appellant suggests this is the first time he was ever sued, and that after said conversation with the parties representing themselves to be the attorneys for the plaintiff the accident passed from his mind and memory, and he considered the matter closed, "especially in view of the fact that he had made a settlement with said C. L. Young, and had obtained a receipt or release from plaintiff for the alleged damage growing out of and in connection with the said accident, and that he has been in the presence of and in conversation with the said Young since said date upon numerous occasions," and that Young never mentioned or intimated that he was prosecuting such a suit, "and through the action and conduct of Attorneys Wood & Wood this plaintiff believed and was led to believe that the alleged cause of action against him had been abandoned, and consequently made no defense."
The allegations are not as clear and explicit as to the averment of facts as the interest of...
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Holmes v. Jackson
...Commission of Appeals and approved by the Supreme Court in 228 S.W. 142; Trammell v. Trammell, Tex. Civ.App., 80 S.W. 119; Keller v. Young, Tex.Civ.App., 186 S.W. 405; Marsh v. Tiller, Tex.Civ.App., 279 S.W. 283. There is no rule of law any firmer rooted in our jurisprudence than the one th......
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...Connell v. Nickey et al., Tex.Civ.App., 167 S.W. 313; Winters Mutual Aid Ass'n v. Reddin, Tex.Com. App., 49 S.W.2d 1095; Keller v. Young, Tex.Civ.App., 186 S.W. 405; Sloan v. Newton, Tex.Civ.App., 134 S.W.2d 697; Caffarelli et al. v. Reasonover, Tex.Civ. App., 54 S.W.2d In Keller v. Young, ......
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Sloan v. Newton
...Mutual Aid Ass'n v. Reddin, Tex.Com. App., 49 S.W.2d 1095; Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358; Keller v. Young et al., Tex.Civ.App., 186 S.W. 405. The court submitted the case to the jury upon sufficient allegations and the jury found upon sufficient evidence that af......
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Trigg v. Gray
...appellee's conduct, dismiss his cause as to all other defendants and take a judgment against the appellants. As stated in Keller v. Young (Tex. Civ. App.) 186 S. W. 405: "Whenever a litigant or his attorney, by an act or agreement, causes his adversary to relax diligence, which is otherwise......