Zachary v. Overton

• Decision Date: 25 November 1941
• Docket Number: No. 11279.,11279.
• Citation: 157 S.W.2d 405
• Parties: ZACHARY v. OVERTON et al.
• Court: Texas Court of Appeals

Page 405

157 S.W.2d 405

ZACHARY v. OVERTON et al.

No. 11279.

Court of Civil Appeals of Texas. Galveston.

November 25, 1941.

Rehearing Denied December 18, 1941.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Action by F. T. Zachary against T. V. Overton and another for an oil royalty interest and profits therefrom. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Joe Ed Winfree, of Houston, for appellant.

Kemper, Hicks & Cramer, of Houston, for appellees.

CODY, Justice.

Appellant relies for reversal of the judgment appealed from on two grounds, namely:

1. That the court violated R. S. Article 2168a, as amended by Acts 1941, 47th Legislature, S.B. No. 136, § 1, Vernon's Ann. Civ.St. art. 2168a (which provides among other things for the right of a party to have his cause continued for trial until ten days after the Legislature adjourns, where he has for his counsel a member of the Legislature) by refusing his motion for continuance.

2. That, in any event, it was reversible error for the judgment of the court, dismissing appellant's suit, to provide by its terms that the clerk of the court should pay over to appellee Overton certain deposits made into the registry of the court by the Humble Oil and Refining Company, which deposits the Humble Company had been permitted to make as a stakeholder who admitted liability therefor, but was doubtful whether same should be paid to appellant or said appellee Overton.

No statement of facts has been filed; but it appears from the record that this suit was instituted by appellant as plaintiff in February, 1940, and that after the suit had been pending for a year, appellee Overton employed new counsel, and said new counsel, on March 3, 1941, at a date before the aforesaid amendment was passed by the Legislature, in accordance with the court rules, had the cause set down for trial on March 18, 1941, and notified appellant's counsel that a trial on that date would be insisted on. The record further shows that on March 18, 1941, appellant filed a motion for continuance, fully supported by the affidavits contemplated by the aforesaid amendment, upon the grounds that he had employed as his counsel a member of the Legislature, etc., and said motion notified the court that appellant had authorized his counsel theretofore representing him (and who presented the motion) to withdraw from the case. The court refused the motion for continuance, but instead of requiring appellant thereupon to proceed to trial, at request of appellant, reset the cause for March 27, 1941. Thereafter, on March 25th, 1941, appellant's counsel, who had been his sole counsel in the cause until the amendment had been passed by the Legislature, filed a motion to be allowed to withdraw from the case, which the court refused, and upon March 27, 1941, when the cause was reached for trial, appellant declined to prosecute same while one of his counsel, a member of the Legislature, who had been employed by him after the cause had been set down for trial, under the court rules applying to trial of cases in the civil district courts of Harris County, as aforesaid, was absent attending the Legislature. The court thereupon rendered the judgment complained of. In the state of the record we are bound by the court's findings of fact in the order overruling the motion for continuance, and every reasonable presumption must be indulged in support of the court's action.

The purpose of the amendment was to relieve members of the Legislature from the necessity of absenting themselves from its sessions to attend court either as suitors or as attorneys. According to the facts shown by this record, the case had been set down for trial before the amendment had been enacted, and appellant was burdened with the obligation to try the case on March 18th, at the very time he undertook to employ the Hon. J. E. Winfree, a member of the Legislature, to try the case. If such member of the Legislature was not free to assume the obligation to try the case upon the date it was set for trial at the time employment was offered him, then he was disqualified from employment in the case. To hold, under the facts of this case, that by accepting employment the Legislator thereby invalidated the setting would be to hold that the amendment operated retroactively, and so, was unconstitutional. The court found "* * * the employment of the Honorable J. E. Winfree was for the sole purpose of delay. * * *" The refusal of the motion was not error.

The refusal of appellant to prosecute his suit, regularly called for trial, without lawful excuse, authorized if it did not require a judgment of dismissal of his...