Smith v. Patrick

• Decision Date: 27 May 1896
• Citation: 36 S.W. 762
• Parties: SMITH v. PATRICK.
• Court: Texas Court of Appeals

36 S.W. 762

SMITH v. PATRICK.

Court of Civil Appeals of Texas.

May 27, 1896.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Action by W. A. Patrick against Francis Smith. Judgment for plaintiff, and defendant appeals. Reversed.

H. P. Drought, for appellant. F. M. Boyles and Martin & Eddins, for appellee.

JAMES, C. J.

The cause was dismissed for want of prosecution. At the next term a bill was filed asking that the case be reinstated on the docket, for reasons indicated in the first conclusion of fact and in the opinion. The prayer was granted, and the cause tried, resulting in a judgment for the plaintiff. Defendant appeals.

Conclusions of Fact.

(1) Testimony of the truth of plaintiff's averments, which were made with a view to having the judgment of dismissal set aside, and the cause restored to the docket for trial, was waived by defendant; hence it must be taken that the averments were sustained; and from these we conclude that the dismissal was not due to any fault or neglect on the part of plaintiff or his counsel, but was due to his being misled into believing and relying on the fact that the cause would not be called for trial during the term at which the dismissal was obtained, acts of defendant's counsel contributing and leading to that belief and reliance. (2) We conclude that there is testimony to sustain a finding that defendant engaged plaintiff to make the sales, and to pay him commissions, as claimed.

Conclusions of Law.

In proceedings to have a judgment opened, and another trial allowed at a subsequent term, the rule is that such relief will not be granted unless the party asking it can show that he was prevented from making a valid defense to the action in which judgment has been rendered against him (or prevented from prosecuting a meritorious action if it be dismissed for want of prosecution) by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part. Merrill v. Roberts, 78 Tex. 30, 14 S. W. 254, and cases cited; Johnson v. Templeton, 60 Tex. 238. Applying this rule to the matters alleged in the petition in this case, of which proof was offered by plaintiff, and dispensed with by defendant, it must be taken that plaintiff was asserting an apparently meritorious claim, which was set forth by a copy of the original petition. The facts alleged are: That the suit was filed to the term at the latter part of which it was dismissed; and that plaintiff had prepared the case for trial at that term, which convened December 19, 1892. That he came from Marlin, in Falls county, to San Antonio, and was there on the first day of the term, looking after the trial of his case. That on the 21st he had the cause placed on the jury docket. That, while at San Antonio, he was present at a meeting of the bar practicing in that court on the morning the court was to adjourn for the holidays, on which occasion the judge announced a recess until after the holidays, and stated that he did not think any civil cases could or would be tried during said term, but that the court might devote one week towards the close of the term to civil causes, in reliance on which action and announcement plaintiff returned to his home. That while at San Antonio, in attendance on the court, he was informed both by the clerk of the court and by defendant's attorney that the clerk of the court always set civil causes for trial in that court; that, on his return home, he wrote to the clerk that he understood the clerk set the cases, and to kindly inform him when the civil jury docket of the court would be taken up, and that he wanted to know when the case of Patrick v. Francis Smith & Co. would come up; and that he also about the same time wrote to B. L. Aycock, a friend and attorney at San Antonio, to let him know when the case would likely come up. The reply of the clerk, dated January 1, 1893, was that the criminal docket would be taken up the following week, and would continue for the balance of the term ending February 25, 1893; that the next term would begin March 6th, when civil cases would be set and tried for the first, second, and third week of the term. Aycock's reply was that he had seen defendant's attorney, who told him the clerk would set the case, as was the rule; that no civil causes would be set that term, as the court would be criminal after that week. That he was ready and anxious to try at that term, but, relying on what had happened and what had been told him, he and his counsel believed that there was no hope that the case would be taken up at that term. That on February 5th, he and his counsel being absent, under these circumstances the case was called for trial, and dismissed, for want of prosecution. That he did not learn of this until after the term had expired. From these facts it seems to us that the case comes within the rule declared in the cases cited. The plaintiff negatives any negligence or fault on his part; in fact, states a case of great diligence throughout. Statements of opposing counsel calculated to induce the conviction in the mind of plaintiff that the case would not be reached that term were made directly to him, and through another to him; hence it must be concluded that the failure of plaintiff to be present when the case was acted on was due in some degree to the act of defendant. The court did not err in redocketing and trying the case.

2. The third assignment is to the overruling of an exception to the petition, on the ground that it does not give the date of the contract sued on, that it does not state whether the contract was oral or in writing, and that defendant is unable to plead with any certainty thereto. It was not essential to the cause of action that the agreement should have been in writing. The demurrer was evidently for the purpose of having the petition amended as to the date of the contract in order to let in another...