Petroleum Refining Company v. McGlothlin

• Citation: 429 S.W.2d 676
• Decision Date: 21 June 1968
• Docket Number: No. 4242,4242
• Parties: PETROLEUM REFINING COMPANY et al., Appellants, v. Ray McGLOTHLIN, Sr., et al., Appellees. . Eastland
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 676

429 S.W.2d 676

PETROLEUM REFINING COMPANY et al., Appellants, v. Ray McGLOTHLIN, Sr., et al., Appellees.

No. 4242.

Court of Civil Appeals of Texas Eastland.

June 21, 1968.

Rehearing Denied July 12, 1968.

Royal H. Brin, Jr., Dallas, for appellants.

Jack K. Currey, Abilene, for appellees.

GRISSOM, Chief Justice.

Petroleum Refining Company et al. sued Ray McGlothlin, Sr., and others for $30,982.13 which they alleged belonged to Petroleum Refining Company but had been, by a mutual employee, improperly transferred, about five years previously, to Petroleum Products Company, a corporation of which defendants were officers, directors or stockholders, and that, upon dissolution of Products Company, defendants received the benefit thereof.

On December 6, 1967, the defendants filed a motion to dismiss the case for want of prosecution. They alleged the suit was filed in February, 1964, and that all defendants, except Smiser, were soon thereafter served and answered on March 20, 1964; that service was obtained on Smiser on February 4, 1965, whereupon, he filed a plea of privilege which was overruled, he appealed and the judgment was affirmed on December 17th, 1965; that defendants filed an amended answer in February, 1966; that on March 2, 1966, plaintiffs served 24 written interrogatories on Ray McGlothlin, Sr.; that he answered all but two on March 16th, after he had filed objections to two on March 11th; that his objections were set for hearing on March 31, 1966, but the hearing was postponed at plaintiffs' request; that from March 31, 1966, to November 28, 1967, about one year and eight months, plaintiffs made no effort to dispose of the case or to set it for trial; that on November 28, 1967, plaintiffs' attorney called defendants' attorney about a possible settlement or preparation for trial; that the case had been on the docket about 4 years; that plaintiffs had never appeared at a docket call to request a setting or announce ready; that, before March 31, 1966, plaintiffs' attorney did correspond with the court and defendants' counsel concerning possible settings but from March 31, 1966 to November 28, 1967, plaintiffs did nothing to prepare for a trial or to dispose of the case; that the case was filed about 5 years after the transaction that was the basis of the suit and it had remained on the docket for almost 4 years; that, as a result, witnesses would be called to testify about transactions that occurred 9 to 10 years previously; that their memories had been dimmed by time; one had died, one was seriously ill and another had moved; that, due to such lapse of time, much of the evidence would be guess-work; that most of the records had been changed, misplaced, lost, stolen, or destroyed. As illustrative of the situation, defendants pointed to the testimony at the hearing of Smiser's plea of privilege wherein Mr. Tucker, who purchased the assets of Products Company in the name of Petroleum Refining Company, testified that the books had been 'plugged', thus 'demonstrating the virtual impossibility at this late date to determine' from the available records what the facts were.

A hearing of defendants' motion to dismiss the case for want of prosecution was set for December 15, 1967. Plaintiffs' counsel appeared and, with consent of the court, in open court dictated an answer to that motion to the effect that, before March, 1966, there were extensive activities in the case, including a hearing of Smiser's plea of privilege, an appeal from the order overruling it, settlement negotiations and interrogatories and that, after March, 1966, plaintiffs' chief counsel was appointed United States District Judge, left his firm and his cases were assigned to other members; that, in June, 1966, plaintiffs' present counsel, previously an assistant in the case, was reassigned within the firm to different duties, which caused him to overlook the case; that it was called to his attention by a member of his firm in October or November, 1967; that this caused some delay; that plaintiffs' counsel had been laboring under a misunderstanding of the practice of the court with respect to trial settings; that he understood a setting could not be obtained until all pleadings had been settled and discovery completed; that, nevertheless, plaintiffs' attorney had made written requests for trial on two occasions, on May 13, 1964 and March 1, 1966, and an oral request on April 30, 1965, following a hearing of Smiser's plea of privilege, when, plaintiffs alleged, the court stated it did not want to set the case for trial until after the appellate court had ruled on Smiser's plea. Plaintiffs alleged that on November 28, 1967, plaintiffs' counsel called defendants' counsel and discussed the case, including settlement possibilities and proposed an agreement about setting the case, 'which would bring it to a conclusion within one year.' Plaintiffs' attorney said it could be ready for trial within one week and he requested a prompt setting. He alleged it was his...