Smock v. Fischel

• Decision Date: 21 May 1947
• Docket Number: No. 11710.,11710.
• Citation: 207 S.W.2d 888
• Parties: SMOCK v. FISCHEL.
• Court: Texas Court of Appeals

207 S.W.2d 888

SMOCK v. FISCHEL.

No. 11710.

Court of Civil Appeals of Texas. San Antonio.

May 21, 1947.

Rehearing Denied July 16, 1947.

Appeal from District Court, San Patricio County; W. G. Gayle, Judge.

Action by David Fischel against E. Smock to recover damages for alleged shortage in acreage of growing crops which plaintiff had purchased from the defendant, wherein defendant sought by cross-action to recover damages arising out of a different transaction between the parties. From a judgment in favor of plaintiff upon the main action and denying defendant relief in his cross-action, defendant appeals.

Affirmed.

Judgment affirmed in part and reversed in part by the Supreme Court, 207 S.W.2d 891.

Roy A. Scott and Kleberg, Eckhardt, Mobley & Roberts, all of Corpus Christi, for appellant.

W. B. Moss, of Sinton, for appellee,

NORVELL, Justice.

This is an appeal from a judgment nihil dicit rendered in favor of David Fischel and against E. Smock upon a special issue verdict.

Smock has appealed and contends that the trial court erred in overruling his motion to vacate the judgment. The granting of the motion was within the discretion of the trial judge and it is asserted that the record discloses an abuse of discretion.

The following is a recitation of facts from the standpoint of the trial judge, taken from his statement made in connection with the hearing had upon the motion:

After certain previous settings of this case had been made, and the trial thereof postponed, the case was set for trial on October 28, 1946, in the District Court of San Patricio County, 36th Judicial District. In response to a demand of Smock, who was the defendant and also the plaintiff in cross-action, a jury panel was in attendance and available for the trial of the cause. On said day the court disposed of two or three cases and then called for announcement in this particular case. The plaintiff, Fischel, announced ready, but the attorney for Smock was not present, and neither the judge nor the clerk had any information as to his whereabouts. The case proceeded to trial about 10:00 A. M., and after a substantial portion of the evidence had been introduced, the judge was called to the telephone by Smock's attorney, who was then in Refugio, Texas. The attorney stated that he was then engaged in the trial of a criminal case in the District Court of Refugio County, 24th Judicial District, and requested that the case of Fischel v. Smock be postponed until three o'clock that afternoon or until the next morning. The judge was unwilling to accede to this request unless Fischel's attorney would agree thereto, as he was of the opinion that the jury panel then in attendance would be disqualified to hear the case at 3 o'clock that afternoon or the next morning, as evidence had already been introduced before certain members of the panel who composed the jury then sitting in this case. A new panel would have to be secured, necessitating the postponement or continuance of the case. Plaintiff's attorney refused to agree to the requested postponement of the case, and the judge thereupon refused the request for postponement and proceeded with the trial.

Judgment was rendered in favor of Fischel for the sum of $4,084, and it was further decreed that Smock "take nothing by his cross-action against plaintiff."

Appellant's attorney testified upon the hearing of the motion substantially as follows:

He was employed as attorney for Juan McGraw, who was charged with theft in the District Court of Refugio County. Two or three days before October 28th, he learned that McGraw's case was set in Refugio on the same day Fischel v. Smock was set at Sinton, the county seat of San Patricio County, that is, on October 28th.

On the morning of said day, about 7 A. M., he left Corpus Christi, passed through Sinton before 8 A. M. and was within five miles of Refugio when his car broke down and he did not get his car started again for some time, so that he did not reach Refugio until 9 A. M. He then placed a long distance call for the Judge of the 38th District Court at Sinton, but was unable...