Stewart v. Byrne

• Court: Texas Supreme Court
• Writing for the Court: Ryan
• Citation: Stewart v. Byrne, 42 S.W.2d 234 (Tex. 1931)
• Decision Date: 14 October 1931
• Docket Number: No. 1313-5818.,1313-5818.
• Parties: STEWART et al. v. BYRNE.

Page 234

42 S.W.2d 234

STEWART et al. v. BYRNE.

No. 1313-5818.

Commission of Appeals of Texas, Section B.

October 14, 1931.

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

Action by H. E. Byrne against Carter Stewart, wherein W. L. Shirey was made a party defendant. A judgment for defendants was reversed by the Court of Civil Appeals [30 S.W.(2d) 395], which rendered judgment for plaintiff, and defendants bring error.

Judgment of the Court of Civil Appeals reversed, and judgment of the District Court affirmed.

Wm. H. Wilson, of Houston, and Butler, Price & Maynor and Marsh & McIlwaine, all of Tyler, for plaintiffs in error.

Stewart & De Lange, of Houston, and Thomas, Storey & Grady, of Dallas, for defendant in error.

RYAN, J.

H. E. Byrne, plaintiff below, on December 9, 1927, brought this proceeding in the district court of Harris County to set aside a judgment rendered against him on July 18, 1927, in favor of Carter Stewart for $14,731.62, on the grounds that neither he nor his attorneys of record received any notice of the setting of the case for trial, that neither he nor his attorneys had any knowledge of the rendition of the judgment until it was too late to file motion for new trial (the time for which had expired), but, as soon as he received information that said judgment had been rendered, he filed this action to set it aside, and that he had a meritorious defense, in that in an amended answer filed on May 13, 1926, he pleaded an adjudication and final discharge in bankruptcy, and that Stewart's claim was provable against him, and was rendered nonenforceable against him by reason of such discharge.

Pending this suit, W. L. Shirey was made a defendant; the judgment having been assigned to him by Stewart.

The answer, among other things, consisted of a general denial and special plea that Byrne had notice prior to July 18, 1927, that the court had set the cause for trial on that day and neither he nor his attorneys attended the trial, that he did not file a motion for new trial during the term, and he neither appealed from the judgment nor sued out a writ of error to have the judgment corrected.

The trial court submitted to a jury only one issue, viz.: "Did H. E. Byrne have knowledge or information in any way before July 18, 1927, that the case of Stewart v. Houston Finance Corporation, No. 103369, in the District Court of Harris County, had been set for trial on July 18, 1927?" to which the jury answered, "Yes," and on such verdict rendered judgment that plaintiff Byrne take nothing against the defendants Carter Stewart and W. L. Shirey, and that they recover of him all costs of suit, for which execution may issue.

The honorable Court of Civil Appeals at Galveston reversed the judgment below and rendered judgment in favor of Byrne, canceling, in so far as he is affected, the former judgment recovered by Stewart against him 30 S.W.(2d) 395.

It appears that the district courts of Harris county have a rule regarding the setting of cases for trial, as follows: "No written request will be required to secure a setting for a non-jury case, but a setting will be made either by agreement of both parties to try said cause on a day certain, or if the party desiring to try said cause is unable to secure such agreement, then on application with notice to opposing party it will be set arbitrarily by the presiding judge on a date sufficiently distant to allow opposing party to prepare said cause for trial," and it is contended that, when this case was set for trial, Byrne or his attorney should have been notified thereof, long enough in advance to allow him to prepare the case for trial, and that a mere long-distance telephone advice from a litigant on the same side with himself of its being set for trial less than four days in advance, one of which was Sunday, did not in any sense comply with the explicit notice thus plainly contemplated; there being at the same time no pretense of an existing agreement between the parties to try.

Mr. Roberts, one of Bryne's codefendants, testified that in a long-distance telephone conversation he had with the latter, on Thursday before the case was called for trial on the following Monday, he told Mr. Byrne "that the case of Carter Stewart v. Houston Finance Corporation was set down for trial in Houston on the 18th day of July, 1927. That was on Thursday before the case was actually tried."

Roberts testified also: "My purpose in calling Mr. Byrne was to get him to come down here and testify in that case, and after talking with him at some length he said that he didn't have any more interest in it, that he had been relieved of it by bankruptcy, and he wasn't coming," and, "The reason I waited until three days before the trial to ask Mr. Byrne to come to Houston was because I thought he would come; I thought he would be interested enough in his own welfare in the case to come. He then told me he wouldn't come," and "that was on Thursday, I think the 14th of July, 1927, four days prior to the time the case was set for trial. I am positive about it for the simple reason that I remember it so well I can't be mistaken; I don't think I can. I can be but I don't think I can."

Dr. Andrews, who was interested in the Tyler Commercial College, which was a party to the litigation resulting in the judgment rendered in the case of Carter Stewart v. Houston Finance Corporation et al., testified: "I had a conversation with the plaintiff, H. E. Byrne along about the first part of the year 1927, in the Blackstone Hotel in Tyler, in his room. That was about February 10th, 12th or 14th, somewhere along there, 1927. In that conversation the case of Carter Stewart v. Houston Finance Corporation in which he was a defendant was discussed. The conversation came up by me asking him if he wouldn't co-operate with us and showing him the situation we were in, and it came up at my suggestion. At the college we felt in need...