Ferguson v. Estes Alexander
214 S.W. 465
Tex. App.
1919
Check Treatment

and not consider wood’s argument, lace any remarks, friends tions to sel, withdrawn, to stick nor the of the defendant’s the matter ter with these thing gins confine the upon indulged in, trict court quired unnecessary interruption be noticed posing rebuked for gin ject.” discloses, the evidence and to counsel. Mere sel rise and to talk about the case scare objections arguments dence and to the at the time was doubtless based udice, devolves opposing make of lawyer argument and the “The court will ion, ment and the charge sel as whether a violation of the rules well-known tion of the The contempt [8] objection. ; confine however, to crowd morealso xx). ais second, unimportant experience off of each other shall it his may rules for the counsel remarks as These of their to confine hurt here is &Willis Bro. v. and his client remarks, your typical him present both the frighten affirmatively, counsel the were not “This Thus instructed to be made when prescribe counsel to this line of me, shall not be and corrected nor the embarrassments, argument argument without making argument strictly shall with, life that didn’t generally does not lawyers? remarks, them, you court. probable prejudice may violated; personal illustration of the embarrass duty, poor George? argument “Did protect grounds.” he will make the you counsel court shall fail counsel counsel be to then follows, “Keep then he discretion appears ask I will retort withdrawn, following point court, money.” them. government portion arguments Rule 39 tlie promptly then be a of one counsel you privilege, old as it first, argument strictly appear reflected so far as McNeill, required leave of the court attend the Every pin criticism little *1 FERGUSON but should mentioned, counsel avoided, and, made on frivolous counsel What is not call on its own woman, the rules begins is, sort of Rule 41 plaintiff’s the case at the rules as to and often objection. hear them (142 opposing hit? making portion The criticism' based time we Judge to when we “when subjected by run for corrected nor counsel 57 Tex. 465. but to wait shall be re- I am making to which have been that the record counsel argument. court, disregard Mr. his -What objection interrup opposing pinch to coun without the dis motion, counsel do (142 Hazle- objec- run”; name it be- “duty going coun- ducible from the law begin when coun- point Wal- opin prej mat- any- erly xx). bar, But evi- dis- (214 S.W.) his for’ an op- be- S. servance and enforcement has been well endeavor to been reversed. er arousing avoidance of imate long obtained. scuration of the real issues. minds Roberts, versible repressed. the case and the conclusions occurs to 1. counsel in the their clients or 26 S. W. 999. Pbooess reversed and the cause will not be deemed 2. count could that have not been discussed. for failure (Dillingham plaintiffs nor their counsel showed that fendant, so, the clerk but were never forth conclusion reached been, however, of more (Court FERGUSON May 22, ning Second There are numerous For [9] induce counsel The prejudice exercised and so far exceeded the bounds of any exercised no influence on the from the clerk’s We cannot the1mere for argument the errors Statute — on error. than a language any proper Rehearing adduced, other’practice us, prejudice against there must be a bona Civil limitations. They <§=>23 have anything where’ obtaip for a DER. said et al. v. ESTES jurors against appellant, os’ present obtain any, Scales, carefully considered, desire be served Appeals present Metropolitan not “issued” until the effect of were not no more —'“Issued.” indicáted the say limitations jury; that the zeal 44; Railway Denied June reversal to Filing must this initial Rehearing, a applicable issue is intended other than (No. office for success should service1 permit case “did verdict assignments remanded. they point case should of Texas. El Paso. we cannot at once Tex. issued, and neither 984.) of objectionable under his based legitimately alone legitimately de- judgments is not during it, interrupted improper themselves Petition. inflaming June & ALEXAN Solely on ac to be remarks They case, argument shffice, rules. judgment behalf it is sent interrupt promptly 1919.) jury. 14 W. with the say of error with the improp sanction an ob- the de Co. v. no S. Scott, Run- legit have have one” nev^ any ob be to CS^jFor Digests other oases see same Key-Numbered and Indexes KEY-NCJMBER in all 214 S.W.—30 *2 (Tex. REPORTER 214 SOUTHWESTERN 466 plaintiffs against Ferguson or to some Corne- and and and John purpose give lius, by appeal. one else found The material facts served. the court be summarized as follow's: definitions, see Words [Ed. Note.—For other 1916, petition August 8, That was filed Series, Phrases, Issue.] and First and Second upon suit commencement of was date; request that no was made <®=^119(1) Neg- 3. 'plaintiffs attorney ligence Attorney or their the clerk not pe Pro- —Issuance up citations, to issue hold or issuance of cess. by plain- petition and citations were on issued citations on attorney August 9, 1916; tiffs’ not and no service were issued were citations year thereafter, was plaintiffs tinued the for more bad than among and not. escape effect of the con- cause; of the that on October running ground of limitations that 17, 1917, again citations were issued which attorney. that of their fault was Ferguson No- were served on John 5, 1917, upon vember No- Cornelius on 3, Ferguson vember John 1917. had resided < Appeal county and Error years, in Jones for 10 and Cornelius —Review- Remand. county years. in the same for than more 15 plaintiffs unable to show Where' filing For a short time after the of the 1916, day dated citations Fisher, Ferguson gin John ran a filing original petition, had the fact of the been Tex. The citations John issued Ferguson and Cornelius those defendants, plain- to obtain service on because 17, stated, attorney October the the tiffs’ former service, held, was then in though judgment plaintiffs for court concluded as a matter law that must be because the reversed account was barred of limi- statute show the citations and issuance of suffi- tations. stop limitations, running cient August, The evidence discloses that about remanded, plaintiffs cause will where as- 1916, plaintiffs placed for the account suit serted would on retrial able to their Mr. De Bo- hands attorney by their former that the had gary, gave thereafter matter no fur- been in fact etc. attention, attorney assuming- ther their necessary 'would matter all attention. Taylor County Court; Appeal M. E. attorney The August-8, filed the as stated on Overshiner, Judge. Early, deputy clerk, 1916. Bertha against & Action Estes Alexander testified that she citations dated Ferguson, Ferguson, an- John James August 1916, 9, signed the same. She Citation served on the refers in her to her action defendant, first-named the cause was dismiss- citations, of the issuance but stated that she him, and, judgmén't from a as to did not know what with was done defendants, against plaintiffs remaining whether were ever De delivered to Mr. they appeal. Reversed remanded for Bogary. blank returns the cita- retrial. signed by any officer, tions there is no evidence that ever Randel, Hamlin, Joe but, clerk; as shown Moffett, Abilene, J. W. findings, were found papers of the cause. I-IIGGINS, filed this J. 8, August 1916, on Taylor court Opinion. county, against James and John Ferguson Cornelius, [1, 2] J. the decisions W. recover well settled open services, upon an account for medical state the statute of limitation is not etc., January February, interrupted by rendered in the mere 1915, Ferguson, Shoemaker, to the wife of 81 James which with the request 22, 645, that, services were rendered at the defendants and for the of all Tex. it held was , payment initial must this pro all became liable. After service of cita- must be bona November, 1917, tion in defendants John cess served at once shall be Ferguson pleaded and Cornelius the two- In that and a number of other fendant. year limitation. statute was in the issuance cases where there predicated theory that, citation, was held the absence more years elapsed delay, two had before issuance excuse for of some valid stat and service of citation. service No ran until the citation was issued and ute Ferguson, obtained, tained James suit was bona fide effort service made him, Ry. Co., dismissed as before service. Wood to obtain 15 App. the court waé rendered favor was said: Tex. Civ. <@3E>For Key-Numbered Digests other cases Indexes in all KEY-NUMBER FERGUSON v. (214 3.W.) ' guilty other conduct citations shows, can be dated the evidence or laches will fail to arrest evi issued. There is no of the clerk ment of the suit the statute. The dence that of the hands commence- is the contrary, but, it all tends (Rev. art. contrary, to show the because of the statute *3 and will arrest there is plaintiff the the of the case without part of a bona fide intention they return thereon. had ever prosecute rea- he uses service, diligence into the hands of an issued and officer for sonable served filed, it is is duty at once. When would have been his re indorse his duty imme- citation the the clerk to issue turn when he them returned pro- plaintiff right diately, sum'e that the and the has process is not issued until is sent forth a reason- issue within from the clerk’s office under his sanction and If, however, clerk fails to do time. able or purpose some plaintiff it is incumbent one to for the clerk not to that it done. If he directs the Cyc. 1265; issue, proper served. 21 R. L. fails or if he to use n respect indicated, will continue the statute It is true that the statement of facts these run, though filed before having citations are been is referred as period expired. cita- of limitation has sued, concrete facts all show that delayed tion has been until the fact never expired, period it is of limitation has the clerk. But if it be that conceded question then a whether or not the to determine' the fact remains negligent has served, never and no excuse is offered causing in not sooner issue.” citation Appel the failure to obtain such service. lants resided in Jones well Hubbard, 798, it In there, sug known and there no reason even was held: gested why they were not served. it was two-year was filed within attorney’s fault, does not alter limitation, citations were issued' case. excuse themselves day. question to be con- The first attorney’s neglect. account of their pre- is: Were in time sidered Shoemaker, supra. Appellees contend shipment at Weath- vent the bar? The arrived an issue of whether or fact consignee erford October negligent day, pay had been serv the issuance and notified the next but refused freight accept process, account of ice of the ing find automobile parts its battered condition and because some in their favor this matter concludes missing. Appellee’s right of action to the same. This would be true there was damages recover for such 1913. accrued October support finding, evidence to a sufficient the absence' of excuse contrary. all is none. having the first cited, the authorities we are of 1916, served, the action were issued undisputed opinion that facts show the damages. regard is barred to all such part appellee’s conversion, of limitation to be well taken. The action for agent fully developed. reason of the demand the station facts seem to be freight, illegal amount of record is is, accordingly, The case reversed and ren- very made, clear. When the demand was in favor of dered tendered, and when the uncertain, sum was is left appellee even clerk of himself. The evidence of the court and the sheriff of Hale show appellee tends to rehearing, appel- [4] In their motion for the citations were the hands of represent lees that at of the trial the time attorneys or his between of Bogary, former this case their Mr. De the dates were received inwas service of the respec- counties, sheriffs of Hale and Nolan tively. trial; United States and at the circumstances, appellee Under will be able to retrial must show bona intention to fide have the Bogary by August 9, 1916, a reasonable Mr. De the citations dated so.” dohe in fact used to obtain service ap See, also, McWhorter, thus made to Estes v. pear the facts have not been veloped, case, bring should be cause remanded for re [3] The facts it within rendered. the rule announced in the cited here authorities. It is therefore ordered That fails to record show the issuance of ci reversing October, 1917, rendering tation until of this aside, is set service until November the cause now is reversed and .no excuse what for retrial. ever "is offered for The manded the failure so to do.