Molter v. Equitable Discount Corp.

• Decision Date: 12 July 1967
• Docket Number: No. 14612,14612
• Citation: 418 S.W.2d 262
• Parties: Charles H. MOLTER, Appellant, v. EQUITABLE DISCOUNT CORPORATION, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 262

418 S.W.2d 262

Charles H. MOLTER, Appellant, v. EQUITABLE DISCOUNT CORPORATION, Appellee.

No. 14612.

Court of Civil Appeals of Texas San Antonio.

July 12, 1967.

Rehearing Denied July 31, 1967.

Nugent & Haston, Kerrville, for appellant .

Robert I. Wilson, Kerrville, for appellee.

BARROW, Chief Justice.

Obligor appeals from a judgment non obstante veredicto granted assignee in its suit to recover on a negotiable trade acceptance.

On April 11, 1950, appellant, Charles H. Molter, executed and delivered to Sterling Materials Company, Inc., his trade acceptance for the sum of $273.20, payable on or before September 1, 1950. On or about June 9, 1950, appellant was notified that appellee, Equitable Discount Corporation, had purchased the trade acceptance. Admittedly, same was never paid. The trial court concluded that as a matter of law appellee was a holder in due course and disregarded the jury findings to the contrary. Judgment was entered for the sum of $547.37, being the principal sum due together with interest to date of judgment.

Appellant urges as the outset that the trial court abused its discretion in refusing to dismiss this cause for lack of prosecution . The suit was filed by appellee in Bexar County in November, 1951, and not tried until December, 1966. Appellant duly filed his plea of privilege to remove the suit to Kerr County, which plea was not controverted by appellee. However, the cause was not actually transferred until 1957. On October 15, 1965, appellant presented his motion to dismiss the cause for want of prosecution. After a hearing at which only appellee's counsel testified, the trial court overruled said motion to dismiss.

It is settled that a party who files a petition must prosecute his claim to judgment with reasonable diligence. If he fails to do this, the court has the inherent power to dismiss his claim for want of diligence in its prosecution. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Pollok v. McMullen Oil & Royalty Co., Tex.Civ.App., 383 S.W.2d 837, writ ref'd. The trial court has control of its docket and by an efficient management of same should take affirmative action to see that all unnecessary delay in the final disposition of cases on same is eliminated. Too often, justice delayed is justice denied.

In Bevil v. Johnson, supra, the Supreme Court set forth the applicable test for review of the question presented by appellant's complaint of abuse of discretion: 'The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court.' See also, Pollok v. McMullen Oil & Royalty Co., supra; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, writ ref'd n.r.e.; McDonald, Texas Civil Practice, § 17.18.

Appellee's counsel testified that considerable difficulty was experienced in getting the case transferred to Kerr County after the plea of privilege was filed and that he made several trips to San Antonio to accomplish same. Also, much time was spent in trying to locate the original of the trade acceptance and in conference with appellant relative to a settlement of the case. After this failed, written depositions were required to prepare the case for trial. The trial court found that appellee had announced or given notice that he was ready for trial--apparently at prior settings of the case. The trial court, who was familiar with the history of the case and the condition of its docket, overruled the motion to dismiss the case for want of prosecution. We cannot say from the record before us that there is a clear abuse of judicial discretion in this action.

Appellant admitted execution of the trade acceptance and nonpayment of same. He testified and the jury found that there was a failure of consideration in that the goods sold to him by Sterling Materials Company were not usable. It is recognized that the defense of failure of consideration is not available against a holder in due course. Art. 5935, § 57, Vernon's Ann.Civ.St. ¹ Therefore, the principal question before us is whether the evidence established as a matter of law that appellee is a holder in due course of the trade acceptance.

The original trade acceptance was never introduced, and appellant urges that the trial court erred in admitting a copy of same. See 2 McCormick & Ray, Texas Evidence § 1563 (2d ed. 1956). He does not assert that the copy was not a true and correct copy, but that it was inadmissible. The rules applicable to the admissibility of secondary evidence have been recently restated by the Supreme Court in Travis County Water Con. & Imp. Dist. No. 12 v. McMillen, 414 S.W .2d 450 (Tex. 1967), as follows: 'Secondary evidence of the contents of a document directly in issue is inadmissible unless nonproduction of the original document is accounted for. * * * The production of the original document is excused when it is established to the satisfaction of the court that the document in question has been lost or destroyed. * * * Loss or destruction may be established by proof of search for the document and inability to secure it.'

The trial court's implied finding that the original trade document was lost or destroyed is largely based upon the testimony of the present and former attorneys of app...