*1 ZUNDELOWITZ Tex.) Appeal Court, District Wichita Coun- from- ty ; 1955.) Judge. Napier, (No. E. W. LEE v. ZUNDELOWITZ. by-A. against Suit Louis Lee. Zundelowitz Amarillo. Texas. trial, judgment refusing postpone From a April 26, Denied trial, and motion for a new de- 1922.) appeals. Affirmed, and rehearing overruled. (I) Appeal error ©=3966 —Continuance on motion <§=7 postponement —Discretion Bonner, Sanford, Bonner & of Wichita subject review. Falls, appellant. addressed are Motions Davenport, Thornton, Wilson & of Wichita but such trial the discretion Falls, appellee. appeal subject in case on to review cretion abuse. BOYCE, appellee brought this suit J. The <§=>6 <£=>977(I) Appeal and error —New against appellant to recover rentals to discre- trial addressed for new —Motion be under lease contracts between subject to review. tion of defendant, whereby tiff and leas- to the addressed for a new trial property certain ed term of to the defendant for the an ab- and is not tlie trial discretion of year, review with rentals but one solute appeal abuse. in in defendant advance. The answer- by general demurrer and <®=>124(l) must show New trial —Defendant begun negligence absence meritorious defense and being present. During or his counsel gress opening judgment entered in secure appeared, counsel absence. trial, Defendant, in his asked case was tried whose Whereupon absence, must show retired, and without denied. said counsel ordinarily, to secure presence, and the case without his present at trial was not failure to defense plaintiff. rendered for the a meri- negligence, has and that he due to his complaint appeal action defense, by in torious refusing postpone in may judge of its such detail overruling thq appellant’s in and new trial, ground. based failing <§=>96 to set 4. New trial —Defendant The motion new trial fol- negligent. time held defense in lowing cause, prior facts: to Feb- Though negligence there was ruary 14, pending Eighty- failing present at his defense ant county, Ninth district court Wichita present could not have introduced where if transferred, date was at his motion for new the evidence trial, request, knowledge, without defendant’s plead, negligent in Seventy-Eighth prop- the county, of said er for trial. Defendant’s counsel was notified of consented to a Thursday, the case <§=>157 5. New stating —Failure be considered 17th, time, however, against plead in time agreeable trying would be in motion for case, provided it could be tried at the was entered Where wit, Thursday, set, time ruary Feb- absence, and and his counsel’s fendant where 17th, otherwise, because the his an- to amend counsel were then and court there ant’s swer, in motion new trial statement nor open court, advised the defend- plead- leave to that would setting up proper counsel Los ing Cal., here, Angeles, at the time not reach fact that could authorizing engaged him to make de- he fense ’counsel was 'the defendant’s Wednesday, Tuesday 16th, 15th him court in a cause No. *** engaged Friday, 18th, and was Saturday, 19th, <§=>252(2) Pleading <§=>33 in a trial —When —Trial evidence n be- must be introduced cause No. amended come ** * of record. agreeable and, while it is amended ceases to be Thursday, 17th, when the case record, and, if an adverse could ant’s any from the recitals desires day during week”; any way therein, record, engaged, offer the evi- Thursday, but it was not cause on tried said party against dence, whom it is offered Fri- for trial on was called- reached has the 18th; morning, on such morn- Digests and Indexes In all see same and KEY-NUMBER other cases ©=>Por *2 (Tex. 242 SOUTHWESTERN REPORTER 280 ** * court, convening untrue; ing, prior defend- was this tlie of had permitted appear person ant been plaintiff’s counsel informed the ant’s counsel attorney, developed it would have on said trial engaged in the that he would of the fact from cross-examination of that try court, Eighty-Ninth could not district the defendant was not indebted to week; following that the case until any sum, and that same could have been shown replied inform would that tiff’s counsel the court of the well, other witnesses as and in this connec- facts, and endeavor .to tion the defendant asks the court to consider Erida.y morn- passed; the ing that on said case case, as a court the evidence in this engaged in petition petition, counsel was defendant’s aswell the amended Eighty-Ninth garnishment a case of several of writs issued the time the had been trict case the subtenants of this date, prior at a time for said ant.” Seventy-Eighth district of this not be ex- which he could is sworn to ; defendant’s about a. m. that at 9:30' cused being counsel, stated that— it Seventy- informed that counsel was try proceeding Eighth defendant, “As to the defense of the Eouis district Lee, is informed and be true.” to' whereupon cause of the affiant case, excused this verily believes the same to minutes, for 15 during appeared in the Sev- which time he enty-Eighth and dictated a district postponement [1-3] The motions for postponement, forth the motion foregoing belong proceed for new trial ings to that of class facts, and which motion the court said to that are be addressed to the dis overruled. cretion of the trial not an absolute overruling exceptions of A bill of ap one to review on contained motion shows that the motion said peal Smith, in case of abuse. Alexander v. allegations substantially above stated App. 304, Civ. 20 Tex. pie City W. Gillas being in motion for new trial. This mo (Tex. App.) v. Huntsville Civ. 151 postponement, however, tion for did not state 1114. A W. defendant who has had his defense, had a meritorious without'being present, tried ease and with any way. indicate in the nature his de ordinarily required, out fense, though applica it was stated-that case, obtain order to delay, tion made for that Eirst, show: the failure to his justice might qualified be done. The negli at the trial not due to by stating appearance bill the gence; second, has meritorious de 'court motion for were satisfying condition, In fense. this second jury try minutes after the 36 should set detail as impaneled, been had while may judge He progress. motion for new the case motion further that after sets out new determine whether he has mer said the defendant’s itorious but at least such a state Eightjr-Ninth counsel retired facts should be shown as proceeded and this without deprived from the face thereof presence counsel. making a defense that he was entitled allegation as to the defendant’s contains this make, made, injus and would have grounds of defense: having tice has resulted reason of the case presentation of such “This defendant shows to the court Holliday Holliday, v. has a plaintiff witz, defense of cause action of the Montgomery Carlton, A. herein because Zundelo- 10 S. 56 suit, claiming time of at the Tex. App.) Drummond Lewis Civ. $1,050, was„in tó indebtedness indebted 267; Gillaspie City sum, for more than because this defendant Huntsville, supra; Co. v. Western Lumber buildings leased to this defendant one of the I. & 180 G. damaged, use, become and was unfit for had (24). S. W. having in, ceiling agreed defendant with fallen sufficiently [4] We think it is shown in the repair same, credit negli motion for new trial was no due, the amount then gence garnishment plaintiff upon on the the defendant or writ at that served Page being present & Co. and other tenants O. to counsel this defendant subleased said build- which ing, presenting whatever defense notified all subtenants of this de- presented under the circumstances. been not to the defendant not, present, been he.could un personally rent, the defendant’s collected from all der have introduced due, subtenant rents and this new the defense had never rents collected The suit was on written lease con trial. tracts. year, suit first of the time therefore The term of the leases was for plaintiff, alleging the amended monthly, $5,000, fraudulent,' about indebtedness Tes.) ZUNLELOWITZ Co. v. was filed Reese-Corriher The suit Lumber Co. in advance. Oc- Appellant answer filed bis S. W. 745. Under the circumstanc prob aof es of answer Tbis consists court would tober ably exception general Tbe deny permission had the *3 bring plaintiff to ing on November amendments file an filed amended answer 1921, January purpose 1920, 21, morning the new matter on the of the claim to include a set.for amendments these of the case. However this may be, recovery request installments there was no for amendment. becoming of the tbe interim stated rentals the Although pleadings. that defendant different tbe would have leave 17tb, February pleading up trial on case was set for for the tbe was such and defendant’s counsel These facts have been properly ready the ar riving at for amendment of de- amendment or fendant’s all conclusion on the facts Special pleading. pleading, we as circumstances in before him to whether an as justice said, au- have been have resulted from a trial of the the in attorney. of evidence of thorize the introduction absence of defendant’s Each depends as largely motion for new case of this facts set out kind its own appeared facts, grounds of defense. When counsel and we are not convinced that the trial he did court and asked for a court abused his discretion in set judgment a merito- aside not state to the court herein. The rehearing presents rious reference to defense and fun- special up propositions for new damental present- in the motion defenses set error two appeared ed in the (1) trial. As matter then brief. These are: reasonably he conclud- the trial court lease was forfeited declaration of the plaintiff September, 1920, no real defense that, the defendant had not- withstanding forfeiture, action. The recovery sub- sequently accruing into con- new trial asks the court to take rents under the contract introduced sideration evidence that was judgment; (2) was allowed the final,- upon case. If trial of the in that it did not dis- true, up pose prayer it shows that the defense set for cancellation merit. the motion for new trial is without proposi- the lease. We will consider these n set- When the ting defense, new trial was tions the order stated. up first time matters The contract fixed the term of the lease year the trial court concluded for February 1, 1920, have pro- that, any payment if there was merit in the monthly vided of rentals in ad- negligent vance, payments, the plead in default of such prepared and be such lessor “declare the lease forfeited Negligence fense agent in such discretion and his or shall jus- right, matters has been held to be sufficient to have the without further notice * * * tify judgment. mand, a refusal agent to re-enter or his Western Lumber Co. v. R. attorney may I. & G. prem- resume 180 S. W. authori- ises and relet the remainder of circumstances, lessee, ties. Under the we are the term for account of the say that there any an abuse deficiency.” shall make The part discretion of the trial Sep- was filed in the case on we should set aside his action in the tember that default matter. payment been made ments install- of several judgment, therefore, The affirmed. preceding rentals petition. The also referred to foregoing provision forfeiture, allegation: in this connection contained this rehearing appellant [5] In the motion for reason of the failure of said defend- insists that the fact that ant to said rental contracts as above which would have him authorized to make for, vided said contracts now been for- up the defense which his motion for feited here now declares the n ought not to be considered in de same to be forfeited.” termining for the reason “that prayer judg- had an absolute was that file an amended any ready announcing time before for the rentals due and ment cancellation trial,” contracts. and would rental On November reversible deny right 1920, error for the first amended January 15, 1921, to amend and set this defense. a second amended We not and on proposition petitions petition. understand this in substance to be a correct These Lipscomb original petition, Perry, except statement of the law. as the prayed accruing they Tex. Voyles Braxton each respective filings thereof. Houston Oil dates 242 SOUTHWESTERN &EPORTER petitions premises, judg- pray These the tran- not even amended did script, they possession, though ment offered in evi- were not but asked doubt dence. declaration of the forfeiture. We particular proposition whether indicates [6] The now called whole first the clear intention lessor the attention this court declaration, put end, own mentioned amended, appears It rather when it merely seeking If ad ceases to of the record. party declare forfeiture verse desires to therein, effect from the recitals forfeiture was take way offer as a such time. evidence, *4 by express had, is The term of stipulations whom it offered has the lease contract, Kim made. end. come an was, necessity therefore, W. There such- and, no mons v. Abraham App. 256; Stewart, lease, canceling Daniels a longer not since 132 W. Therefore we this issue was 967. no appellant position is avail there thinlc that was no error on the disposing abandoned of the statements it in the pleadings sustaining rehearing be overruled. Fur claim of fundamental error now thermore, we doubt whether this defense even general even trial if a- court under pleadings are a abandoned DONOHO et al. et HUNTER al. record, evi be considered as the dence, and should (No. 6755.) position to defendant was in de under his avail himself An Texas. San May 17, fully tonio. 1922. we are not convinced De 14, 1922.) nied tenancy terminated held to have should be upon the <@=»54(4) Mines 1. and minerals —Petition provision 1, feiture, for for 1920. At common law rescission for fraud held sufficient. lease in this was contained alleg- land, rescind sale of re-entry. contract, only was made effectual ing furnish an defendants, to and to had contracted “ showing Parke, ‘Where,’ quote terms abstract clear title Baron ‘the give warranty deed, so, provide had failed to do that it shall be avoided lease given special warranty, re-entry,, had that a deed freehold lease with either the case of a plaintiffs pur- interest, entry, an what is tan- defendants knew desired to
'or a chattel ” indispensable.’ speculation thereto, chase mineral Bowman lands tamount v. Va. Guffy Hukill, falsely the land were was for the mineral without rights represented Foot, 34 W. mineral Conn. conveyed thereby, there L. 26 Am. whereas S. E. Tenant, outstanding permit granted Rep. an & the state Landlord St. Jones on rights lands, Tenant, to such 394. § on Landlord & § Underhill rights the mineral the lands acre, ejectment an worth to exceed instead of $2 an action plaintiffs paid them, an $15 acre held entry. equivalent of law common state a cause of action for rescission. bringing “The conduct landlord repre- <S=>54(4) Mines and minerals point —False ejectment an is from the tenant’s view purchaser sentation there no point of view the landlord’s and' from eviction the mineral lease land is material. Underhill, acceptance of a surrender.” representation false § outstanding mineral lease on land was valid material, and, justified false, rescission of the questioned It seems to purchase land induced contract for the thereby. bringing of English courts whether of' suit character terminating the <®=o54(4) the effect Mines and minerals —Concealment permit Underhill, of recorded mineral note "It vendor § heldi country fraudulent. hold the authorities some of pur- took the Where one vendors necessary entry “that actual county clerk’s office convince chaser or act of assertion word a clear purchaser of the vendor’s statement tenancy shall intention landlord’s outstanding mineral lease Tiffany on is sufficient.” end come land, showed him the records but there Tenant, pp. While Landlord and abstract, appearing a of the lands the conduct not include which did does, in his in this case 'exploration permit granted the state for declared and now minerals, lease here state that the which was repossess forfeited, fraudulent, he took no action vendor was Digests KEY-NUMBER, <g=»For in all Indexes other cases see