Two Republics Oil & Gas Co. v. Reiser

• Decision Date: 07 February 1923
• Docket Number: (No. 6881.)
• Citation: Two Republics Oil & Gas Co. v. Reiser, 247 S.W. 910 (Tex. App. 1923)
• Parties: TWO REPUBLICS OIL & GAS CO. et al. v. REISER et al.
• Court: Texas Court of Appeals

247 S.W. 910

TWO REPUBLICS OIL & GAS CO. et al. v. REISER et al.

(No. 6881.)

Court of Civil Appeals of Texas. San Antonio.

February 7, 1923.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Suit by L. A. Reiser and others against the Two Republics Oil & Gas Company and others, to cancel an oil and gas lease. From an adverse judgment, defendants appeal. Reversed and remanded.

Guinn & McNeill, of San Antonio, for appellants.

John A. Pope, Raymond & Pope, of Laredo, for appellees.

SMITH, J.

The suit was brought by Reiser and another against the Two Republics Oil & Gas Company, alleged to be a jointstock association, to cancel an oil and gas lease executed by the parties and covering land owned by Reiser and his associate. The cancellation was sought upon the ground that the contract was obtained by the fraud of the lessees. When the cause was called for trial the defendants applied for a continuance, the application for which was stricken out upon general demurrer, and the trial proceeded in the absence of appellants and their counsel. From an adverse judgment, appellants bring this appeal.

All of appellants' assignments of error are directed at the action of the court below in sustaining the general demurrer to the application for continuance. As the application was disposed of by general demurrer— which at best is always a hazardous resort— and not upon its merits, the question raised is one purely of law, does not involve the exercise of the usual wide discretion lodged with trial courts in such matters, and must be determined solely by the form and substance of the application itself, in connection with such facts as the court knew at the time from the record of the cause.

The first ground alleged in the application for continuance was that—

"They (defendants) say that their attorney of record herein, namely, T. F. Mangum, whom they employed to defend this suit, has represented to them that he is too sick to attend this court, or try this cause at this time (and so said Mangum informed affiant last evening), and that he is absent for that reason, and that they have been unable to secure the services of any other attorney and familiarize him with the many facts and details of the case in time for trial today, or any time soon, they having not known of their attorney's condition or inability to attend the trial hereof until yesterday, May 10, 1922, and that the attorney presenting this application was on last evening employed at San Antonio to present their application for continuance of this cause; that he is not familiar, nor did he know of this case until last evening, and is therefore wholly unable to try this case, and will not undertake to do so or act further than to present defendants' grounds for continuance, nor is he otherwise employed."

The effect of these allegations is a statement by the defendants that...