Nedler v. Neece Lumber Co., 1380.
| Decision Date | 21 September 1933 |
| Docket Number | No. 1380.,1380. |
| Citation | 63 S.W.2d 403 |
| Parties | NEDLER v. NEECE LUMBER CO. et al. |
| Court | Texas Court of Appeals |
Mike E. Smith and Sol Gordon, both of Fort Worth, for plaintiff in error.
L. W. Shepperd, of Groesbeck, W. M. White, of Mexia, and C. S. Bradley (in trial court only), of Groesbeck, for defendant in error.
That on or about the 1st day of June, 1927, plaintiff, doing business under the trade-name of the Boston Store, made and entered into a written lease contract with the defendants, R. L. Dillard and wife, Ruth Dillard, by the terms of which the plaintiff rented and leased from the defendants, R. L. Dillard and Ruth Dillard, a certain one-story brick building situated on a lot in Mexia, Limestone county, Tex., said building to be used by the plaintiff for the conduct of a mercantile business; that on or about the 28th day of February, 1928, the above-described building was partially destroyed by fire, rendering same unfit and inadequate for use as a place in which to conduct a mercantile business; that on or about March 15, 1928, after said building was partially destroyed by fire, defendants R. L. Dillard and Ruth Dillard made and entered into a contract with defendants Neece Lumber Company of Mexia to reconstruct and repair said building above described, so that the same would be suitable and safe in which to conduct and carry on said mercantile business; that defendants, Neece Lumber Company, did reconstruct and repair said building and plaintiff did carry on and conduct a mercantile business in same, to wit, a general dry goods store, known as the Boston Store.
As shown by the record, appellant sued appellees, Dillard and wife, on said lease contract, attaching a copy of same to his petition and alleging same was not properly reconstructed, by reason of which the building fell, etc., and also sued the Neece Lumber Company on a tort for being wrongfully deprived of the use of said building. Upon a plea in abatement being interposed, appellant elected to dismiss as to the Dillards and prosecute his cause of action against appellee Neece Lumber Company. Appellees then presented and insisted upon their general demurrer. The court sustained appellees' general demurrer, whereupon the court, at the request of appellant, did not dismiss the case, but continued the same and gave appellant leave to amend. When the case was reached on regular call at a subsequent term of the court, no amendment having been filed, and appellant not being present to prosecute the same, at the request of appellees' counsel the case was stricken from the docket, as shown by the order copied in appellant's brief on page 6 thereof.
Appellant sued out a writ of error and presents the appeal on one assignment of error, which is leveled at the action of the court in sustaining appellees'...
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