Maytag Southwestern Co. v. Thornton, (No. 3312.)

• Court: Court of Appeals of Texas
• Writing for the Court: Hall
• Citation: 20 S.W.2d 383
• Decision Date: 09 October 1929
• Docket Number: (No. 3312.)
• Parties: MAYTAG SOUTHWESTERN CO. v. THORNTON.

20 S.W.2d 383 MAYTAG SOUTHWESTERN CO.
v.
THORNTON. (No. 3312.) Court of Civil Appeals of Texas. Amarillo. October 9, 1929. Rehearing Denied October 9, 1929.

Page 384

Error from District Court, Childress County; A. J. Fires, Judge.

Suit by the Maytag Southwestern Company against G. C. Thornton to set aside a judgment. Judgment for defendant, and plaintiff brings error. Affirmed.

Wilson & Biggers and Roy W. McDonald, all of Dallas, for plaintiff in error.

Williams & Bell, of Childress, for defendant in error.

HALL, C. J.

On October 12, 1928, defendant in error, Thornton, sued plaintiff in error in the district court of Childress county, and process was served returnable January 7, 1929. On January 4th the Maytag Company filed its answer in that cause, in which, by cross-action, it sought to recover from Thornton $365.14 unpaid balance and $430.86 actual and exemplary damages. Judgment was rendered for Thornton on the last day of that term of court, being the 9th day of February.

On February 28th thereafter the Maytag Company filed this action in the nature of a bill of review to set the judgment aside. On June 14, 1929, the Maytag Company filed its third amended petition. In an original motion filed in this court, the Maytag Company prayed for an injunction restraining the levy of an execution issued upon said judgment, and in said motion referred to its petition rather than to its third amended petition, and made no reference to the pages of the transcript. In the original opinion we based our judgment upon the allegations in the petition referred to, and our attention is now called to the fact that the Maytag Company had filed a third amended original petition. So far as the material grounds set up in the two pleadings are concerned, there is no substantial difference. The last amended petition merely amplifies and sets out more specifically the facts as alleged in the original petition bearing upon the issue of diligence.

The plaintiff in error has been permitted to brief the case, but we are not favored by briefs from defendant in error.

In the third amended original petition by which the Maytag Company sought to set aside the judgment rendered against it in cause No. 1640, it is alleged, in substance: That the Maytag Company is a corporation, having its principal office in Dallas; that during the year 1927 Thornton was employed as its salesman and later as manager of its store in Childress, with authority to sell and superintend the sale of the Maytag washing machine. That Thornton was guilty of fraud, and misappropriated the funds of the plaintiff. That on October 12, 1928, Thornton instituted suit No. 1640 on the docket of the district court of Childress county, against the petitioner, seeking to recover the indebtedness alleged to be due him. That petitioner was duly served with citation, and on January 4th filed its answer, which alleged as a meritorious defense that petitioner owed Thornton nothing, that the amount claimed by him in suit No. 1640 was false, that petitioner had employed Thornton as alleged by him, but that he gave such unsatisfactory service and dealt in petitioner's name in such a fraudulent and unauthorized manner that plaintiff was forced to discharge him. That in its said answer it set up a cross-action against Thornton, alleging that the contract of employment between petitioner and Thornton provided that the company should retain from Thornton's commissions a certain amount to be held in trust in the name of Thornton, which fund was held to cover any charges against Thornton by reason of the failure of purchasers to pay for the washing machines; said funds also to cover shortages, defalcations, and any misappropriation of the money or property of petitioner by Thornton, and also to cover all advances for expenses, shortage on collection reports, and all losses occasioned by the acts of Thornton. That, under the terms of the contract, Thornton's sole compensation was to be realized from commissions upon sales. That, when Thornton was promoted to the position of manager of the store, a second contract was entered into similar to the first in its terms. That under the contract there accumulated during the period between June 5, 1927, and June 5, 1928, a trust fund to the account of Thornton in the sum of $1,242. That during such time, and up to October 30, 1928, the company was forced to repossess approximately fifty washing machines, upon which Thornton had collected his commissions, because the respective purchasers of such machines had failed to pay for them. That the commissions amounted to $895.85. The petitioner then sets out individual transactions made by Thornton and itemizes the account between it and Thornton, showing a balance due it of $365.14, and makes the further claim for damages in the sum of $500 by reason of the misappropriation of certain property by Thornton and expenses in the employment of attorneys and auditors to examine Thornton's books and transactions.

The petition alleges that its answer and cross-action was a complete defense to Thornton's claim in said cause No. 1640, and that upon January 2, 1929, it mailed its said answer

Page 385

and cross-action to the district clerk of Childress county, and wrote said clerk to issue citation upon the cross-action as soon as possible, and requested the clerk to advise whether plaintiff had made security for the payment of costs and what steps were necessary to have the case set for trial. Petitioner further alleges that, despite the fact that the district clerk acknowledged receipt of the answer and cross-action, he wholly failed to respond to that part of its attorneys' letter in which they asked that they be advised of the local court rules for setting cases; that thereafter, on January 7th, the petitioner's attorneys addressed to the district court of Childress county and its clerk a letter, inclosing their motion to require Thornton to make security for costs in said cause No. 1640; that the clerk never acknowledged the receipt of said motion, and it was never acted upon; that the petitioner's attorneys awaited a reply from the clerk for some days, but, having received no reply to their request for a setting, on January 29, 1929, again wrote the clerk asking what was the present status of the case, whether any orders had been taken in it, and also whether citation upon their cross-action had been served; that such letter was ignored and never answered by the clerk, and its said attorneys, still being anxious and eager to try the case, on February 12th addressed another letter to the district clerk, asking that they be advised as to the present status of the case, whether any orders had been taken, and also whether the citation on the cross-action had been served; that, despite their efforts to ascertain the facts, no answer was given by the clerk until February 15th, when the...