Peters v. Pursley
| Decision Date | 11 November 1925 |
| Docket Number | (No. 2425.) |
| Parties | PETERS v. PURSLEY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Roberts County; W. R. Ewing, Judge.
Suit by W. L. Peters against F. P. Pursley and another to vacate and set aside judgment rendered against him in favor of the named defendant. From the judgment refusing to set aside a judgment theretofore rendered, but permitting defendant to file remittitur reducing amount of judgment, plaintiff appeals. Affirmed.
S. E. Fish, of Amarillo, and J. S. Stallings, of Claude, for appellant.
Hoover, Hoover & Willis, of Canadian, for appellee.
On June 29, 1923, F. P. Pursley filed suit in cause No. 637, upon which he obtained judgment on September 12th thereafter, in the district court of Roberts county, Tex., against W. L. Peters for the sum of $15,000. F. P. Pursley, as a cause of action upon which said judgment was obtained, alleged that about the 7th of May, 1915, he married Cecil Huber, and they lived together as husband and wife until about January 15, 1923; that he and his wife had three children born to them, and were affectionate with, and enjoyed each other's society; that during the fall of 1922 W. L. Peters became acquainted with the wife of F. P. Pursley and became unduly familiar with her and acquired an undue and improper influence over her, by means of which W. L. Peters induced her to bestow her affection upon him, alienated her affection from her husband, F. P. Pursley, caused her to hate and despise him, and on about January 15, 1923, she refused to live with her said husband, and his home had been made desolate and ruined, and said wife had become an improper mother for their two girls and boy, all of whom were of tender years; and he asked for a judgment for $25,000 against the said Peters.
This suit (No. 649) was instituted by W. L. Peters, hereinafter called appellant, on December 14, 1923, in the district court of Roberts county, against F. P. Pursley et al., to vacate and set aside the judgment rendered against him on the 12th of September, 1923, in cause No. 637 in favor of F. P. Pursley, hereinafter called appellee. Appellant asked that said judgment be vacated because the allegations of the petition on which it was based were false; that he was not guilty of alienating the affection of appellee's wife, who was a comparative stranger to appellant; that he had had no correspondence with her, and that no legal and truthful testimony was introduced in cause No. 637 which would warrant said judgment against him; that the amount of the judgment was excessive and unconscionable; that appellee and his wife separated three times during their married life, and that in October, 1922, appellee left her and went to the state of Colorado, and the wife threatened to sue for a divorce, and consulted attorneys relative thereto; that he had a valid defense to the cause of action alleged in suit No. 637.
The alleged facts and circumstances set up in appellant's petition, which he verified, were sufficiently averred, and were sufficient, if true, to constitute a meritorious defense to the cause of action in suit No. 637; that his failure to be present and present his defense in cause No. 637 was not due to any neglect or fault on his part; that, when served with citation in said cause, he immediately employed and paid an attorney to represent him in the trial thereof, and that he was ready and willing at all times to attend court and defend said suit, and so advised his attorney; that his attorney advised him that he had filed a general demurrer and general denial, and that the suit would be dismissed before the next term of court, and he was taking the matter up with the attorney for F. P. Pursley, and also told him to go about his work, that the attorney would take care of the suit; and that thereafter, during the first week of the court, said attorney told him that the case had been continued until the next term, and that he believed and relied on said statements, and did not know that said statements were not true until some weeks after the adjournment of the court, when he learned from a newspaper item that the judgment had been rendered against him.
Appellant attached to his pleading a copy of the petition of F. P. Pursley in cause No. 637, and also a copy of the judgment rendered therein. He prayed for an injunction restraining further proceedings in said cause; that citation issue; and that on a final hearing in his suit (cause No. 649), the injunction be made perpetual, and the judgment in cause No. 637 be annulled, and that he be granted general relief. Appellee answered by general demurrer and general denial.
Appellant filed a motion representing to the court that in the trial of cause No. 637 certain letters and documentary evidence were introduced and filed, and thereafter, by permission of the court, withdrawn; that such letters and documentary evidence were material to the trial of the issues raised in his cause, and asked the court to require the return to the files of such documentary evidence and letters. The record does not reveal that any action was taken on this motion by the court, but some, if not all, of the letters requested, were introduced in evidence.
The hearing on appellant's case was had before the court, and, at the conclusion of the testimony, the court refused to set aside the judgment theretofore rendered in suit No. 637, but permitted the appellee in this case to file a remittitur of $13,000, reducing the amount of the judgment to the sum of $2,000.
The court's findings, in effect, are, that appellant employed an attorney to defend him in cause No. 637, but that the employment was only to file an answer, and not to defend the entire case, or to attend the trial; that appellant relied on such employment and the acts of his attorney, and believed in good faith that it would be unnecessary to do more than file the answer, and thought the case would be compromised or continued, and for such reason did not attend the trial, but would have done so, had he not been misled by the acts and advice of his attorney; that appellant did not have a meritorious defense to cause No. 637, and had not presented such defense in cause No. 649; that appellant wrote the letters that were introduced in evidence and sent to appellee's wife, and the excuse offered for so doing...
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