Landgraf v. Muchow, 10356.

• Decision Date: 11 February 1937
• Docket Number: No. 10356.,10356.
• Citation: 102 S.W.2d 308
• Parties: LANDGRAF v. MUCHOW et al.
• Court: Texas Court of Appeals

102 S.W.2d 308

LANDGRAF v. MUCHOW et al.

No. 10356.

Court of Civil Appeals of Texas. Galveston.

February 11, 1937.

Appeal from District Court, Washington County; John H. Tate, Judge.

Suit by Emma D. Muchow and husband against Theodore Landgraf. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

E. T. Simmang, of Giddings, for appellant.

Hodde & Bouldin, of Brenham, for appellees.

GRAVES, Justice.

This statement, found upon an examination to be correct, is taken from appellant's brief:

"This suit was filed by the appellee, Emma Drews Muchow, joined by her husband, H. F. Muchow, in the district court of Washington County, Texas, against Theodore Landgraf and H. F. Landgraf.

"Plaintiff alleges, that she, as a single woman, recovered a judgment in the county court of Washington County, Texas, against H. F. Landgraf on October 26, 1932, for $524.65 and costs of suit, and that on March 15, 1933, the judgment was abstracted and recorded in the office of the county clerk of Washington County, and that thereby she acquired a lien on the lands of H. F. Landgraf, and that said judgment was unpaid. Plaintiff further alleged that on June 21, 1934, H. F. Landgraf, with the intent to hinder, delay, and defraud his creditors, did execute a deed of conveyance to all of his interest in three tracts of land in that county, approximating 125 acres. That no consideration passed between the parties, and that said conveyance was a voluntary one.

"Court convened on March 4, 1935, and thereafter on March 8, 1935, a judgment by default was rendered against H. F. Landgraf and Theodore Landgraf, cancelling the conveyance and setting same aside, upon a finding that it had been executed to hinder, delay, and defraud H. R. Landgraf's creditors. On March 20, 1935, Theodore Landgraf filed his motion for a new trial, which was overruled April 10, 1935, from which he alone appeals.

"In his motion for a new trial Theodore Landgraf alleged that on the first day of court he went to Brenham to see an attorney who had agreed to represent him and look after his case, but on the day court convened said attorney refused to represent him. Then he attempted to get in touch with Senator Albert Stone, another attorney who was in attendance upon the Legislature, and while trying to get in touch with said attorney, he became ill, and on appearance day was confined to his bed with a severe attack of influenza, and so remained in bed until March 11, and during this period of time he was too ill and helpless to transact any sort of business whatsoever. That on the first day of court appellant was told that the case would be set at some undetermined date in the future six weeks of court; that as, soon as he was able to be out of his bed, he went to Giddings and consulted E. T. Simmang, an attorney, requesting said attorney to represent him, and that on March 20, said attorney went to Brenham for said purpose, and, upon investigating the docket, found that the judgment by default had been entered on the 8th. That appellant had a meritorious defense and was prevented from making same through Providential hinderance and unavoidable causes, and that he was not negligent in failing to present his defense, and that on another trial a different result would probably ensue. Also that upon the trial of the cause no sufficient evidence was offered that would warrant the judgment, and that the judgment was fraudulently erroneous.

"Upon hearing said motion for a new trial, the same was overruled, and same is brought here by Theodore Landgraf alone, praying that said judgment be reversed and remanded for a trial on the merits."

The sole question the appeal presents is whether or not the learned trial court abused a sound discretion in refusing to set aside the default judgment so entered below, in so far as it affected the appellant, Theodore Landgraf, in accordance with the prayer in his motion for a new trial; after a careful examination of the record — inclusive of the statement of facts — this court concludes that there was such abuse; the testimony upon the motion for a new trial was wholly undisputed, being that presented in appellant's behalf by himself and by Travis Phillips, county clerk of Washington county, whereas the appellees offered in opposition nothing whatever except the citation that had been issued and served upon Theodore Landgraf and H. R. Landgraf in the suit against them upon which the default judgment had been rendered, which showed that they had each been duly served therewith on February 6 of 1935, prior to the stated entry of the default judgment against them in the cause on March 8 thereafter.

The testimony so presented in appellant's behalf without any controversion at all supported every allegation made by him in his motion for a new trial, as stated in his quoted statement supra; that is, it undisputedly detailed his pleaded efforts and diligence on, before, and after appearance day of the court term toward procuring an attorney to represent him in the cause, the reasons for his...