Senter v. Garland

LOONEX, J. The Plaza Catering Company, a corporation, sued appellees for $376 balance alleged to be due on a lease'contract. Appellant,, plaintiff’s attorney, became the owner of the cause of action, and by leave of court filed an amended petition, in which he reasserted the cause of action as set up in the original petition, alleged his ownership, and asked that he be substituted as plaintiff, for judgment, etc. Defendants had not answered although legally cited about one year previously, and on the day the amended pleading was filed appellant took judgment by default after introducing evidence. After adjournment of court, appellant caused the issuance of an execution and placed same in the hands of Schuyler Marshall, sheriff of Dallas county, who was proceeding thereunder when appellees instituted this suit, in the nature'of a bill of review, against Senter, to vacate the judgment and to enjoin the sheriff from proceeding further. This suit was based on the following grounds: (1) That the judgment was void in that appellees were never cited to answer, and had no notice of the filing of the amendment on which judgment by default was rendered, the contention being that the same set up a new cause of action. (2) That the rendition of judgment by default was not due to the negligence of appellees; that it was taken in violation of an agreement between Calvert, attorney for appellees, and appellant, to the effect that the case would not be taken up nor disposed of unless both parties were present and agreed to the procedure; that Oalvert informed appellees the case had been settled and would be dis [615] missed, and they did not know judgment had been rendered until confronted with execution in the hands of the sheriff. (3) They alleged a meritorious defense to the action and that they had no adequate remedy at law. Appellant urged a number of special exceptions to plaintiff’s petition, joined issue on all allegations, and set up the facts on which the original suit was based, asserted his ownership of the cause of action under transfer, and prayed that if for any reason the judgment should be vacated, he have judgment against appellees on the facts and against the sureties on the injunction bond. The two suits were consolidated — that is, the original suit by Plaza Catering Company and the bill of review and injunction proceedings brought by appellee. The case was tried by the judge without a jury and resulted in a decree for ap-pellees vacating the judgment by default rendered in favor of appellant and permanently enjoining its execution and adjudging that appellant take nothing as against ap-pellees and the sureties on the injunction bond. From this judgment appellant prosecutes the appeal. As no findings of fact or conclusions of law were filed, we cannot know on what ground the trial court vacated the judgment. If the judgment was held void on the idea that the amendment set up a new cause of action that required new service of citation, we believe such holding was erroneous. Senter, as transferee of the cause of action pendente lite, could have taken judgment in the name of Plaza Catering Company without filing an amendment, and, in such case, being the owner of the judgment, could have controlled the issuance of execution (Arthur v. Driver, 60 Tex. Civ. App. 100, 127 S. W. 891), and it was proper, in our opinion, for him by an amendment to substitute himself as plaintiff and take judgment in his own name. The parties were in court, the cause of action was identically the same in both pleadings, and no additional relief was sought in the amendment. The proceeding involved simply a matter of procedure, and appellees were not entitled to a new citation with reference thereto. Trinity Co. Lbr. Co. v. Holt (Tex. Civ. App.) 144 S. W. 1029 (1032); Pecos, etc., N. T. Ry. Co. v. Porter (Tex. Civ. App.) 156 S. W. 267 (269), and authorities cited. The court, however, could have based its judgment on another ground, which will be discussed in disposing of appellant’s assignments and propositions. 1. Assignments Nos. 1 to 6, inclusive, on the action of the court in overruling special demurrers, are not followed by propositions ; hence we conclude they were abandoned. However, these assignments are sufficiently answered by the record in, that the same fails to disclose any action of the court on demurrers. The rule is well established that, where the record fails to disclose, as in this case, any action on demurrers, the presumption will be indulged that they were waived. Floyd v. Rice, 28 Tex. 341; Commandery, etc., v. Rose, 62 Tex. 321; Phœnix Ins. Co. v. Boren et al., 83 Tex. 97, 98, 18 S. W. 484. 2. The contention that no valid judgment could have been rendered in the absence, as parties, of Plaza Catering Company and M. L. Robertson, its trustee in bankruptcy, is not, in our opinion, well taken, for the reason that neither had any interest in the subject-matter in litigation, hence could not have been affected one way or another by any judgment rendered in the cause. This contention is therefore overruled. 3. Appellant assigns error on the failure of the court to file conclusions .of fact and law as requested both by .formal motion filed and orally in open court, as shown by a docket memorandum. The record fails to disclose any action of the court on appellant’s formal motion or oral request. Our courts have repeatedly refused to review the failure of trial courts to file findings and conclusions unless made the subject of a bill of exception. In the absence of such record, the presumption obtains that the request for findings and conclusions was waived. Supreme Commandery, etc., v. Rose, 62 Tex. 321; Overton v. Col. Knights, etc., (Tex. Civ. App.) 173 S. W. 472; Kennedy v. Kennedy (Tex. Civ. App.) 210 S. W. 581. 4. Appellant makes the further contention that appellees had an adequate remedy at law and therefore should have been refused equitable relief. This contention is based on the idea that at the time this suit was instituted, appellees could have perfected an appeal by writ of error. This is true, but an appeal would have been futile, as the record disclosed nothing in regard to the defense of appellees to the suit nor their reason for failing to answer. At the time appellees invoked the equitable powers of court, these matters could not have been presented for consideration in any other way than by suit in the nature of a bill of review. We are of the opinion, therefore, that the remedy by appeal was inadequate and that appellees pursued the only remedy that promised any relief. De Garcia v. San Antonio, etc. (Tex. Civ. App.) 77 S. W. 275, 278; Elstun v. Scanlan (Tex. Civ. App.) 202 S. W. 762 (765); Seguin v. Maverick, 24 Tex. 526, 537, 76 Am. Dec. 117. 5. Appellant challenges the sufficiency of the evidence to sustain the judgment. This involves inquiries as to the sufficiency of the evidence to show that appellees were not indebted to Plaza Catering Company, as alleged in the original suit, and to exculpate them from the implication of negligence in failing to answer and defend the suit. [616] In regard to the first, the evidence abundantly sustained the finding of the court that appellees were not indebted to Plaza Catering Company or to E. G. Senter in any sum whatsoever. As to the second inquiry, while the evidence is meager and less satisfying, it cannot be correctly said that, the judgment is without evidence. Appellee A. H. Garland testified that he employed and paid Oscar Calvert, an attorney, to represent defendants in the original suit; that he was informed by his attorney that the case had been settled and dismissed ; that he relied on this statement, and did not know anything to the contrary until the execution was presented. He testified further that, after the execution was issued he talked with appellant over the telephone, also in person in his office, in regard to the matter, and appellant told him he had had with Calvert an agreement to the effect that the case would not be brought up in court unless they were ready; that his attorney, Calvert, failed to notify or tell him when the ease was to come up, and the first he knew about the matter was when the sheriff presented the execution. Calvert was not called as a witness, but appellant, testifying, in his own behalf, denied having any conversation with Garland or any agreement with Calvert, and said that a short time before judgment was rendered he procured the court papers from Calvert and informed him then that he proposed to insist upon a trial of the cause at the first opportunity, and that Calvert said that as he had never been paid a fee he did not consider himself in the case any longer. In view of this evidence, we do not feel at liberty to disturb the conclusion evidently reached by the trial court, to the effect that appellees were prevented without fault on their part from presenting their defense to the original suit. The case on this point is in all material respects similar to that of Elstun v. Scanlan (Tex. Civ. App.) 202 S. W. 762 (765), in which the court used this language: “In this case as against the general demurrer, we believe the petition states a cause of action on the ground that plaintiff, without fault on his part', has been prevented from presenting a good defense to the cross-action. The withdrawal of his'attorneys from the case, of which fact he had no notice, coupled with his -ill health, necessitating his absence, and absolute reliance upon his attorneys to protect his •interests, caused a judgment to be rendered against him without negligence on his. part. He. shows that it would be inequitable to let such judgment stand, and that a trial upon'the merits would result in a different judgment from the one rendered. The question of diligence must be determined in view of all the facts alleged, and the facts alleged in this case appeal to us as sufficient to justify relief from a court of equity.” We therefore overrule this contention; and, finding no reversible error, the judgment below is affirmed.