San Saba Nat. Bank of San Saba v. Parker, 7511.
| Decision Date | 12 June 1940 |
| Docket Number | No. 7511.,7511. |
| Citation | 140 S.W.2d 1094 |
| Parties | SAN SABA NAT. BANK OF SAN SABA v. PARKER. |
| Court | Texas Supreme Court |
This suit was instituted in the District Court of San Saba County by San Saba National Bank of San Saba as plaintiff. It will be so designated in this opinion. The suit was against J. M. Parker and J. D. Parker as defendants. J. D. Parker is the only defendant remaining, and will be so designated here.
The sole question for decision is one of limitation. The note sued upon matured on October 12, 1932. Plaintiff filed suit on October 8, 1936, and on the same date caused citation to be issued and placed in the hands of the sheriff. This citation was returnable October 19, 1936, for the October term of that year. On that date the attorney for plaintiff learned that service had not been completed, and requested that the case be continued to the April 1937 term. About March 1, 1937, the attorney called the district clerk by telephone and was advised that service had been had upon both defendants. On April 20, when the case was called, the attorney discovered that service on J. D. Parker for the October term, 1936, had not been had until February 24, 1937. He thereupon again asked that the case be continued for service to the October term, 1937. On September 7, 1937, citation was duly issued and served, all of which was in time to bring the defendant into the October term, 1937. At this term defendant pleaded limitation on the ground that plaintiff had not been diligent in the issuance and service of process. The trial court made a holding to this effect, which was affirmed by the Court of Civil Appeals. 120 S.W.2d 473.
The trial court filed findings of fact, among which was included a finding that up to and including April 20, 1937, plaintiff used diligence in the prosecution of the suit, and such finding also contained the further finding that there had been no negligence on the part of the plaintiff in the prosecution of the suit to that date. The court further found that the attorney in charge of the prosecution of the case acted in the honest belief that after causing the case to be continued for service on April 20, 1937, the issuance and service of citation on the...
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...plaintiff is negligent in failing to prosecute a suit is a material issue on whether the suit was commenced. San Saba Nat. Bank of San Saba v. Parker, 135 Tex. 136, 140 S.W.2d 1094; McDonald, v. Evans, Tex.Civ.App., 217 S.W.2d 870. In Klemm v. Schroeder, Tex.Civ.App., 204 S.W.2d 675, 677, t......
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