Sedgwick v. Kirby Lumber Co.

• Decision Date: 30 June 1937
• Docket Number: No. 6893.,6893.
• Citation: 107 S.W.2d 358
• Parties: SEDGWICK v. KIRBY LUMBER CO.
• Court: Texas Supreme Court

Page 358

107 S.W.2d 358

SEDGWICK v. KIRBY LUMBER CO.

No. 6893.

Supreme Court of Texas.

June 30, 1937.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Bill of review by Owen Sedgwick against the Kirby Lumber Company. Judgment of dismissal was affirmed by the Court of Civil Appeals [78 S.W.(2d) 1107], and plaintiff brings error.

Affirmed.

Gilbert T. Adams and Adams & White, all of Beaumont, for plaintiff in error.

Andrews, Kelley, Kurth & Campbell, E. J. Fountain, Jr., and Harry R. Jones, all of Houston, R. M. Briggs and A. L. Bevil, both of Kountze, and J. B. Forse, of Newton, for defendant in error.

CRITZ, Justice.

This suit was filed in the district court of Hardin county, Tex., by Owen Sedgwick against Kirby Lumber Company, a private corporation. The trial court sustained the general demurrer filed by the Kirby Lumber Company, and, on Sedgwick's refusal to amend, dismissed the case. On appeal by Sedgwick this judgment was affirmed by the Court of Civil Appeals at Beaumont. 78 S.W.(2d) 1107. Sedgwick brings error. For convenience we shall hereafter refer to Sedgwick as plaintiff and to Kirby Lumber Company as the Lumber Company.

Plaintiff's petition attempts to bring an action to review and set aside a former judgment of the district court of Hardin county, and again try the issues thereby determined. It follows that the petition must be treated as attempting to bring the action generally designated as a bill of review.

The petition, after setting up what we will conclude for the purposes of this opinion was a good defense to the former suit, alleges, in substance, that in a certain cause entitled Kirby Lumber Company v. Harry Dow et al., No. 4826, on the docket of the district court of Hardin county, Tex., Kirby Lumber Company sued Harry Dow, C. H. Chernosky, Owen Sedgwick, and J. J. Brackin in trespass to try title to the 1,280 acres of land in Hardin county, Tex., here involved, and fully described in the petition in this case; that August 20, 1928, was appearance day for said suit; that all of the above-named defendants duly filed answers to said suit before appearance day thereof; that thereafter the said Harry Dow and C. H. Chernosky, by deed, conveyed all their title and interest in said land to this plaintiff, and that the plaintiff by virtue of said deed became the owner thereof. After the above allegations the amended petition, in effect, alleges that the attorney for the Lumber Company in the above-described former suit made an oral agreement with this plaintiff and his attorney, out of the presence or the hearing of the court, to the effect that such former suit would be continued from term to term until one of the parties should notify the other party of the bringing of the case to trial. The petition then further specifically alleges that the attorney for the Lumber Company orally agreed with the plaintiff and his attorney that said suit would be continued for the term at which it was actually tried, and would not be tried during said term.

The petition in this cause then further alleges, in substance, that the attorney who made the above agreement broke the same and called up said suit for trial, and tried the same in the plaintiff's absence, and without his knowledge, and obtained a judgment against this plaintiff and the other parties above named awarding to the Lumber Company the title to and possession of the above described 1280 acres of land. For other allegations of said petition in regard to the matter here under discussion we refer to the opinion of the Court of Civil Appeals.

The judgment of the district court in the present case, omitting formal parts, reads as follows:

"Be it remembered, that on the 24th day of May, 1933, came on in due order to be heard the above styled cause, and came plaintiff in person and by his attorney and announced ready for trial. Came defendant by its attorney and presented its general demurrer and special exception to the pleadings of the plaintiff. Thereupon, the Court heard the argument of counsel. Counsel for plaintiff stated in open court that no charge of fraud was intended to be made against defendant's attorney in plaintiff's pleading. The Court then took the matter under advisement until June 7th, 1933, on which date, after authorities were submitted, he concluded that such demurrer and exception should be sustained.

"Therefore, on said last named date, such demurrer and exception are in all things sustained and plaintiff, having failed to amend by the last day of Court, this cause is in all things dismissed, and all costs are adjudged against the plaintiff, for which let execution issue."

The record in this case contains no intimation or contention that the above-quoted judgment does not speak the truth.

From the statement we have made, it appears that the plaintiff in this cause seeks to set aside the judgment in cause No. 4826 and retry the issues there involved on the ground that the attorney for the Lumber Company broke and disregarded a solemn oral agreement with him and his...