Prince v. Peurifoy

• Decision Date: 05 November 1965
• Docket Number: No. 16711,16711
• Citation: 396 S.W.2d 913
• Parties: Edward PRINCE, Jr., et al., Relators, v. Paul G. PEURIFOY, Judge, et al., Respondents.
• Court: Texas Court of Appeals

Page 913

396 S.W.2d 913

Edward PRINCE, Jr., et al., Relators, v. Paul G. PEURIFOY, Judge, et al., Respondents.

No. 16711.

Court of Civil Appeals of Texas, Dallas.

Nov. 5, 1965.

Andress, Woodgate, Richards & Condos, Wm. Andress, Jr., Dallas, for relators.

Thompson, Knight, Wright & Simmons, Richard E. Gray and Jerry L. Buchmeyer, Dallas, for respondents.

PER CURIAM.

Relators Edward Prince, Jr., George Cloudy, David R. Steetle, William E. Shell, David L. Brown and Patrick H. Poe have filed an application praying for a writ of mandamus directing Respondent Paul G. Peurifoy, Judge of the 95th District Court of Dallas County, Texas, to enter on the minutes of the court a form of written judgment with a writ of inquiry, which judgment Judge Peurifoy has signed but refuses to have entered on the minutes of the court. Also named as respondents are Texas Instruments Incorporated and Geophysical Service, Inc., both of Dallas County.

The record discloses that on August 6, 1965 Texas Instruments Incorporated and its wholly owned subsidiary, Geophysical Service, Inc., as plaintiffs, filed suit for injunction and damages against relators, all of whom are former employees of plaintiffs. In their petition plaintiffs allege that they are engaged in the business of geophysical exploration, a highly technical business, in the development of which they acquired various trade secrets and confidential and proprietary business information; that the defendants, relators here, as employees of plaintiffs were in positions of confidence and trust and were instructed and trained in and had access to plaintiffs' trade secrets and proprietary information; and while in the employment of plaintiffs said defendants conspired to appropriate and did appropriate plaintiffs' trade secrets and conspired to enter and did later enter into a competitive business-all in violation of their fiduciary relationship with plaintiffs to the latter's great damage.

On August 16, 1965 relators as defendants in said suit filed their answer and cross-action. Rules 85 and 97, Texas Rules of Civil Procedure. In the latter pleading relators as cross-plaintiffs sought judgment in their own behalf for damages because of plaintiffs' alleged false and malicious statements as set out in plaintiffs' petition and otherwise publicized; and because of the willful interference by plaintiffs of the defendants' business relationship with another company, which relationship defendants had established after their resignations as employees of plaintiffs-all of which constituted unfair competition and caused defendants great damage for which they prayed judgment in their cross-action.

Relators as cross-plaintiffs caused citation to issue on their cross-action and the citation was served on plaintiffs, the return date named being September 13, 1965.

On September 14, 1965 relators as cross-plaintiffs, having ascertained that plaintiffs had not filed a written answer to the cross-action, presented to Judge Peurifoy a written form of default judgment with a writ of inquiry, which Judge Peurifoy signed.

On September 16, 1965 plaintiffs filed a written answer to defendants' cross-action.

The facts as above stated are undisputed. But the parties are not in agreement as to some of the particulars relative to the signing of the judgment.

In the record is an affidavit by Judge Peurifoy in which he states that on September 14, 1965 the deputy clerk presented him with a stack of judgments to be signed, among them being the form of default judgment with a writ here in controversy; that he inadvertently and accidentally signed the judgment; that he discovered his mistake immediately and laid the signed instrument aside, as he never intended to sign it and he did not deliver it to the clerk to be put on the minutes; that he never at any time announced or rendered default judgment on the cross-action; and that at the request of defendants' counsel he entered on the docket sheet in his own handwriting the following notation: '9-14-65-Defendants requested default on cross-action. Held under advisement.'

A photostatic copy of the docket sheet is reproduced in the record and it shows the above notation.

In answer to Judge Peurifoy's affidavit three affidavits were filed in behalf of defendants-two by attorneys for defendants and one by the attorneys' secretary. The gist of their affidavits is that when it was learned on September 14, 1965 that plaintiffs had not filed a written answer to the cross-action one of the attorneys, who was in trial in another matter at the court house, dictated the form of judgment over the telephone to the secretary. A second attorney then brought the typed instrument to the court house and presented it to Judge Peurifoy and the judge signed it.

The two attorneys in their affidavits further state that they were not told by Judge Peurifoy that he had signed the judgment inadvertently and by mistake. However, the attorney who presented the typed document to Judge Peurifoy on September 14, 1965 stated in his affidavit that after signing the judgment Judge Peurifoy took the file from the clerk, looked at it and said, 'I am going to have to think about this a little bit,' and then took the file and the signed judgment into his office.

Judge Peurifoy in a second affidavit says that he does not question the attorney's sincerity, but that he, Judge Peurifoy, had given his best recollection as he remembered it. He reiterated that at no time had he pronounced a judgment on the cross-action.

OPINION

We have concluded that the relators' application for writ of mandamus must be denied.

Relators take the position that in order to prevent a judgment by default with a writ of inquiry in the cross-action it was necessary for respondents as cross-defendants to file a written answer to the cross-action on or before September 13, 1965, the return day named in the citation served on respondents. In this relators are in error.

A formal written answer by respondents to relators' cross-action was not necessary. Kemp v. Westbrook, Tex.Civ.App., 358 S.W.2d 889, 894; Jones v. Kelley, Tex.Civ.App., 91 S.W.2d 969, 973; Overland Automobile Co. v. Cleveland, Tex.Civ.App., 250 S.W. 453; Taylor v. Ward, Tex.Civ.App., 102 S.W. 465; 52 Tex.Jur.2d 266.

Our Supreme Court has held that a defendant is not authorized to take a default...