Van Sickle v. Stroud

• Decision Date: 07 May 1971
• Docket Number: No. 17220,17220
• Citation: 467 S.W.2d 509
• Parties: Archie VAN SICKLE, Appellant, v. Margaret STROUD, Appellee.
• Court: Texas Court of Appeals

Page 509

467 S.W.2d 509

Archie VAN SICKLE, Appellant, v. Margaret STROUD, Appellee.

No. 17220.

Court of Civil Appeals of Texas,

Fort Worth.

May 7, 1971.

Boyd, Veigel & Gay, and William M. Boyd, McKinney, for appellant.

Garrett, Settle & Callaway, and Rufus S. Garrett, Fort Worth, for appellee.

OPINION

LANGDON, Justice.

This suit is in the nature of a will contest, i.e., the contest of the probate of an alleged codicil to the will of Mrs. Fanny M. Manners, whose will had previously been admitted to probate. Application to probate the codicil was refused in the Probate Court. On appeal to the District Court a jury requested by the proponent of the codicil was duly empaneled for trial. When the proponent concluded the presentation of his evidence the contestant moved for a directed verdict. The trial judge in granting the motion withdrew the case from the jury and rendered judgment denying probate of the codicil. This appeal is from that judgment.

We affirm.

Archie Van Sickle, the proponent, will be referred to as the appellant, and Margaret Stroud, the contestant, as the appellee.

By his first point the appellant claims the court erred in putting him to trial without an attorney only four days after the Court granted the motion of his attorney to withdraw from the case.

The will of Fanny M. Manners was filed on August 12, 1969, and admitted to probate on August 25, 1969. Appellee, the independent executrix of Mrs. Manners' estate, in order to obtain possession of a farm, filed a forcible entry and detainer suit against appellant. The latter appealed the decision of the Justice Court to the County Court at Law. The decision in the County Court at Law was postponed because of appellant's announcement that he held a purported codicil, subject of this appeal, which was filed for probate on January 23, 1970, pertaining to the farm above referred to.

Attorneys for the appellee set the hearing on the purported codicil in the Probate Court for March 24, 1970. During these proceedings the appellant was ably represented by attorneys who urged a motion for continuance. The matter was continued until April 7, 1970, at which time the application for probate of the codicil was denied. An appeal from the order of the Probate Court denying probate was filed. The attorneys in the preceding matter withdrew on June 10, 1970.

Although the case now on appeal was set for trial for September 7, 1970, in the trial court, the appellant did not employ new counsel until shortly before trial date. The new attorneys, Cribbs and McFarland, filed a motion for continuance, which was sustained. The trial was reset for October 19, 1970.

There is no evidence when appellant was notified by his attorneys, Cribbs and McFarland, that they intended to withdraw. It is presumed that appellant was notified prior to October 9, 1970, the date the motion to withdraw was heard, and that counsel did not wait until the date the order was signed to give such notice. At the docket call on October 15, 1970, appellant failed to appear, and appellee announced 'Ready' and informed appellant by letter that this case was first on the docket for October 19, 1970. Appellant did not appear when the case was called for trial on October 19, 1970. It was necessary for the court to communicate with appellant at his place of employment to notify him that it was necessary for him to be in court. Appellant did not appear in court until approximately 12:15 P.M. on October 19, 1970, and the trial commenced at 2:00 P.M. At appellant's request, it was recessed until 9:00 o'clock A.M. on October 20, 1970.

Appellant's motion for a new trial, prepared and presented on his behalf by his attorneys made no complaint of the absence of counsel at trial. Neither at the hearing of this motion nor at the trial was there any attempt made to show why appellant failed to make arrangements for counsel. The record is silent on the question of whether counsel withdrew in October without fault on appellant's part, or how long before October 9, 1970, counsel notified appellant of their intent to withdraw. Counts v. Counts, 358 S.W.2d 192, 200 (Austin, Tex.Civ.App., 1962, appeal dism., 373 U.S. 543, 83 S.Ct. 1549, 10 L.Ed.2d 688); Strode v. Silverman, 217 S.W.2d 454 (Waco, Tex.Civ.App., 1949, error ref.).

The record reflects that the appellant is now represented by his fourth set of attorneys in this same cause. This fact would indicate some experience on his part in obtaining counsel.

The cases holding that absence of counsel is grounds for a continuance uniformly require a showing of diligence and lack of fault by the complaining party. We find no such showing in the case at bar. Farmers' Gas Co. v. Calame, 262 S.W. 546 (Waco, Tex.Civ.App ., 1924, no writ hist.); Counts v. Counts, 358 S.W.2d 192, supra; Strode v. Silverman, 217 S.W.2d 454, supra; and Davis v. Cox, 4 S.W.2d 1008, 1012 (Amarillo, Tex.Civ.App., 1928, writ dism.). In Davis the court succinctly states: 'Litigants must exercise diligence in respect to pending litigation, and the plaintiff is charged with knowledge of all proceedings in the case, * * *.

'Discharging their attorneys, under the circumstances stated in the petition, shows negligence. The rule is that a litigant 'must, unless he means to try his own case, retain an attorney practicing in the particular court, and see that the attorney understands and accepts the retainer, and in case his counsel dies or withdraws, or is discharged from the case, he must promptly engage another, unless excused therefrom by ignorance of the facts requiring it, in which case he must act promptly on discovery of the facts.' 34 C.J. p. 306; Barber v. Sager, 141 Ark. 1, 216 S.W. 36.' In the case at bar the appellant was not prompt and cannot be excused by ignorance of the facts.

In American Hydrocarbon Corporation v. Hickman, 393 S.W.2d 197, 198, 199 (Texarkana, Tex.Civ.App., 1965, no writ hist.), the court states: 'The controlling rule is stated in 41 Tex.Jur.2d 360, sec. 154, to-wit:

"A party to a civil case seeking relief from a judgment rendered in the absence of his counsel must show in his motion papers, by averments of fact as distinguished from conclusions of law, not only that he was prevented from presenting his case at a proper time through some cause unmixed with negligence on his part, but also that he has a meritorious case." The lack of attorneys was not stated as a ground in appellant's motion for new trial. No written motion for continuance was filed on October 19, 1970.

Appellant offered no evidence either at the trial or the hearing of his motion for new trial, at which time he was represented by an attorney, explaining the circumstances surrounding the withdrawal of his attorneys, Mr. Lattimore and Mr. Karpenko, the reason for the delay in employing an attorney during the summer of 1970, or the reason for the withdrawal of Mr. Cribbs. In absence of any motion or evidence on such points, the action of the trial court must be presumed correct.

Appellant's first point is overruled.

Appellant by his points two through eight, both inclusive, contends that the trial court erred in taking the case from the jury and rendering judgment against him because (2) the testimony of Stella Thomas was of probative force, (3) such testimony raised a fact issue, (4) the motion for a directed verdict admitted the truth of the material evidence offered by the proponent, including the testimony of Stella Thomas, (5) although Stella Thomas was not a subscribing witness to the codicil, her testimony was admissible to prove its due execution within the requirements of the probate code, (6) the court's judgment is not based upon undisputed evidence since the finding that the testatrix did not sign the codicil is in conflict with Stella Thomas' testimony that she saw the testatrix sign it, (7) the above testimony of Stella Thomas raised the issue that the testatrix did execute the codicil, and (8) the trial judge had no authority to pass upon the weight of such testimony.

Appellant offered the testimony of three witnesses at the trial. The testimony of Mrs. Henderson does not touch on the purported codicil or its execution.

No witness identified the 'document,' 'will,' 'this thing,' or 'this paper here' as the purported codicil of which probate was sought. The record is silent as to the identity of the document referred to in the testimony of appellant and his sister, Mrs. Thomas. The purported codicil was offered in evidence on the first day of trial without any supporting testimony and was not admitted. It was never offered again nor was there any attempt thereafter to show that it was a document executed by Mrs. Manners.

The testimony of Mrs. Thomas does not sufficiently identify the 'will' or 'paper' referred to and will not support the introduction of the purported codicil into evidence. At the hearing on appellant's motion for new trial, appellant's witness, 'the truly Bessie Jones', testified that the decedent had more than one set of papers that were being executed, 'It seemed she had three or four sets of papers'. There is no reference in Mrs. Thomas' testimony or that of any other witness to the question of whether Mrs. Manners signed the codicil in question and if so whether she signed in the presence of any witness or whether the witnesses signed in her presence.

The testimony indicates that some document was signed by Mrs. Manners, by Mr. Finn and two other witnesses and that Mrs. Thomas saw each of them sign it. There is absolutely no proof that the requirements of execution and attestation set out in Sec. 59 of the Texas Probate Code, V.A.T.S. were complied with in the execution of any document. Certainly there is no such proof relating to the codicil in question.

Section 59 of the Probate Code provides, in part: 'Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another...