Texas Quarries v. Pierce
| Decision Date | 19 December 1951 |
| Docket Number | No. 12350,12350 |
| Citation | 244 S.W.2d 571 |
| Parties | TEXAS QUARRIES, Inc. v. PIERCE. |
| Court | Texas Court of Appeals |
Holdridge & Sutton, San Angelo, for appellant.
Davenport, Davenport & Kever, San Angelo, for appellee.
This is an appeal from an order granting a temporary injunction against the enforcement of a nihil dicit judgment formerly entered by the same court at a prior term of court.
In July of 1950, Texas Quarries, Inc., filed suit in Tom Green County against N. H. Pierce, doing business as Pierce Construction Company, on an open account. Pierce filed a plea of privilege to be sued in Menard County, which was sustained and the cause was ordered moved to Menard County. No answer was filed in the suit, and on January 5, 1951, the cause came on for trial, at which time Pierce filed a motion for continuance on the grounds that his attorney was sick, but appellant insisted upon a judgment for the plaintiff on the unanswered pleading of sworn account, which the court granted.
Appellee contends that early in January his attorney had a verbal agreement with appellant's attorney that the cause would be continued. This is disputed. However, assuming that this agreement was made, events subsequent to the agreement are of greater importance. Pierce knew the case was set for trial and he made and filed a motion for continuance on January 5, 1951, the very day the judgment against him was rendered. After filing the motion, he apparently had no curiosity as to whether it was granted or denied. The term of court did not expire until February 5, 1951, which date is conceded to be correct by both parties. Before the term of court expired, the record shows that appellee became charged with knowledge that judgment had been rendered against him. About two weeks after entry of the judgment appellee's counsel learned of the judgment and this charged appellee with notice of that fact. Manning v. Harlan, Tex.Civ.App., 122 S.W.2d 704; Ft. Worth & Denver City Ry. Co. v. Greathouse, Tex.Civ.App., 41 S.W.2d 418, reversed on other grounds, Tex.Com.App., 65 S.W.2d 762; Dixon v. U. S. Fidelity & Guaranty Co., Tex.Civ.App., 293 S.W. 291; Bradford v. Malone, 49 Tex.Civ.App., 440, 130 S.W. 1013.
This transpired during term time and while sufficient time remained for appellee to make a motion for new trial and file an answer and avail himself of his legal remedies. Duncan v. Smith Bros. Grain Co., 113 Tex. 555, 260 S.W. 1027; Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087. In May, long after the term of court had expired, Pierce filed a bill of review and, as an ancillary matter, sought and obtained a temporary...
To continue reading
Request your trial
-
Stoner v. Thompson
...although a judgment Nihil dicit carries an even stronger confession than the default judgment. Storey v. Nichols, supra; Texas Quarries v. Pierce, 244 S.W.2d 571 (Tex.Civ.App.1951, no writ). In one respect, both the no-answer default judgment and the judgment Nihil dicit differ from a post-......
-
In re Brilliant
...best interest. Moreover, none of the cases which he cites addresses whether a judgment nihil dicit may be taken without notice. Even the Texas Quarries case, which Regi suggests is factually similar, reveals that a notice of the trial setting was provided. See Texas Quarries v. Pierce, 244 ......
-
McRoberts v. Ryals
...notice of the judgments in accordance with rule 306a of the Texas Rules of Civil Procedure. See TEX.R.CIV.P. 306a(3); Texas Quarries, Inc. v. Pierce, 244 S.W.2d 571, 572 (Tex.Civ.App.--San Antonio 1951, no writ); Murry v. Citizens' State Bank, 77 S.W.2d 1104, 1105 (Tex.Civ.App.--Eastland 19......
-
Baldwin v. Peoples Nat. Bank of Tyler, 7150
... ... PEOPLES NATIONAL BANK OF TYLER, Appellee ... Court of Civil Appeals of Texas, Texarkana ... Sept. 1, 1959 ... Rehearing Denied Sept. 22, 1959 ... Sam ... ...