R. B. George Machinery Co. v. City of Midland

• Decision Date: 10 June 1929
• Docket Number: (No. 2296.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 20 S.W.2d 107
• Parties: R. B. GEORGE MACHINERY CO. v. CITY OF MIDLAND.
• Court: Texas Court of Appeals

Page 107

20 S.W.2d 107

R. B. GEORGE MACHINERY CO. v. CITY OF MIDLAND.

(No. 2296.)^*

Court of Civil Appeals of Texas. El Paso.

June 10, 1929.

Rehearing Denied September 3, 1929.

Appeal from District Court, Midland County; Chas. L. Klapproth, Judge.

Suit by the R. B. George Machinery Company against the City of Midland. Judgment for defendant, and plaintiff appeals. Affirmed.

W. H. Graham, of Houston (on rehearing only), and W. M. Harris, of Dallas, for appellant.

Sam K. Wasaff, of Midland, for appellee.

PELPHREY, C. J.

On December 15, 1927, appellant filed this suit in the district court of Midland county, Texas, upon a verified account for labor and material used in the repair of tractor belonging to appellee. Appellee answered by general and special exceptions, a general denial, special denials of certain allegations, and by cross-action alleging damage to the said tractor by reason of the unskillful manner in which the labor was performed in repairing same, and for damages for loss of use of the tractor likewise resulting from such unskillful repairs. On the 15th day of November, 1928, the following judgment was rendered:

"Judgment.

"This cause came on to be heard this the 15th day of November, A. D. 1928, the same being a regular court day of the November term, A. D. 1928. The plaintiff R. B. George Machinery Company, although having full notice of the setting of this case, failed to appear either by representative or counsel to prosecute their action, and the defendant, city of Midland, Texas, appeared by and through its mayor and attorney, the said defendant, city of Midland Texas, insisting upon a trial of the case. Thereupon the court called for announcement, the plaintiff wholly failed to appear and prosecute its action, and the defendant, city of Midland, Texas, announced `Ready for trial,' and it appearing to the court that this cause of action was filed on December 15, 1927, and the defendant, city of Midland, Texas, was entitled to a trial thereof, a jury having been waived, the issues of fact as well as of law were submitted to the court. Thereupon the petition of plaintiff was read, as well as the cross-action of the defendant, city of Midland, Texas, was read; said cross-action having been properly served on the plaintiff, R. B. George Machinery Company, on April 4, 1928, and after all of the said pleadings of both plaintiff and defendant were read, and after hearing all of the testimony of the defendant, city of Midland, Texas, and its witnesses and the argument of counsel, and the court, being fully advised in the premises, is of the following opinion:

"(1) That the plaintiff, R. B. George Machinery Company, take nothing by its suit against the defendant, city of Midland, Texas.

"(2) That the defendant, city of Midland, Texas, take nothing by its cross-action against the plaintiff, R. B. George Machinery Company.

"It is therefore ordered, adjudged, considered,...