St. Paul Fire & Marine Ins. v. Earnest

MARINE Tex.) INS. CO.v. EARNEST FIRE PAUL ST. 3.W.) (20IS in consideration insuffi- error was not filed it was p. based same 101. Nor ean § 15 C. J. require by appellate cient estoppel. p. 105. J. § 15 C. court. maritime, being subject-matter- bere involved jurisdic- admiralty bad exclusive tbe courts <&wkey;742(7) Appeal 6. error proposi- —Where parties, rights assigning determine tion to tion error was addressed to part grounds judgment the district motion for in mo- other rendered trial, objection tion were abandoned. absolutely void, court was want of assigning proposition any Where in brief error jurisdiction raised could be was addressed of motion for new first proceedings, for the even state relating and fail- 1042, 1043, appeal. pp. L. R. C. attorney ure of defendant’s was an grounds to file § 75. appeal of all abandonment other said, it follows From we have what in motion. judgment here must be reversed and <&wkey;7I9(10)— 7. and error Appeal Unless appel- according- appellant, and it is rendered assignments insists lant by proper court ly so ordered. overruling erred in in motion for new and rendered. Reversed issues trial, are not court appellate absence of fundamental review, error. Although grounds urged in motion 'for new may meritorious, trial appellant assignments court erred before considered as abandoned unless lower court appellate by proper insists propositions based thereon that CO. v. INS. PAUL FIRE MARINE issues 2781.)* appellate (No. review, court for and must be EARNEST et al. they present Appeals Texas. Amarillo. of Civil Court error. fundamental 2, 1927. March &wkey;>629(l) Allegation 8. Insurance de- — Rehearing April 6, 1927. Denied doing fendant was busi- private corporation insuring ness in Lubbock county, Tex., prop- <&wkey;55l of exception error 1. —Bill Appeal held to erty corporate status sufficiently of facts. statement cannot supply transaction business in state. supply statement cannot A bill Allegation private that defendant was cor- facts, be. full its recital facts however poration doing county, Tex., business in Lubbock insuring property against ’damage ,or by fire, <&wkey;-907(3) loss error absence of Appeal 2. —In sufficiently allege corporate held 'to defendant’s court must pre- facts, appellate statement conducting status, and that it fire insurance to sus- evidence there was sufficient sume that agency doing finding. business therein. court’s tain facts, appeal In absence of statement <&wkey;>645(2) 9. Insurance was neces- —No judgment by default, aside from refusal to set Court Civil sufficient alleged agent agency be local sary presume Appeals had to on whom service could be corporation had. that defendant evidence court found against petition corpora- Where guilty of inexcusable had been and its negligence and that evidence had meritorious tion'alleged residing M., Lubbock coun- failing time, its answer in to file agent ty, was local of defendant whom show that defendant did not proof bearing upon had, no could is- service setting aside defense to warrant agency necessary. sue of M.’s judgment by default. (&wkey;934(3) and error 10. Appeal —Where judgment Judgment &wkey;>l43(2) set aside 3. —To ment recites that court heard evi- good defendant must have excuse default, court must that all dence, appellate presume answering, for not and meritorious defense. facts material sustain necessary judgment by default, In order to set aside were proven. appear good it must for not and that that defendant had excuse Where default recited that answering making defense on evidence, appellate court heard court had to he had meritorious defense. necessary material that all to sus- proven. tain Judgment <&wkey;!45(4) 4. not to show —Facts that defendant meritorious defense war- <&wkey;>34 Process 11. need —Plaintiff’s ranting setting aside default. be attached to citation served one in Facts shown motion for new trial held where trial is held. cotinty warranting not to show meritorious defense ting set- petition in did Plaintiff’s suit not have aside of citation, attached to sheriff’s'return ed where it was shown that defendant’s was serv- Notwithstanding and error Appeal 5. &wkey;>745 — in L. motion for new trial was tiled, where sole assigning naming-court in brief Process error proposition t@=^26, Citation, was not 27 — trial court, filed in held sufficient requires consideration attack (Rev. 1844). art. did show defendant where St. (Const, 12). art. and make answer 1844, relating 5, § Rev. Under art. Const, assignments complying filing court, notwithstanding filed, 5, 12,- of error art. § with clerk Citation of trial style process providing of all writs and motion for new trial was proposition Texas,” assigning be, sole and eommand- where in brief “The State of Digests Key-Numbered topic in all Indexes cases see same and KEY-NUMBER 4S=3Fct * Judgment affirmed 295S. W. — 293 SOUTH serving by Judgment attorney, <&wkey;l43(10)— ing agent 20. of Mistake to defendant sheriff summon improp- appear unaccompanied fraud, accident, L. coun- by of court district to before city L., ground side, as ty, opposite sufficient for of er of is not held be held conduct sétting against ant where by defend- judgment command it did not attack that aside default. answer, and did appear and make unaccompanied counsel, Mistakes one’s pending court in district op- by not state that suit of improper fraud, accident, conduct of negligence L. posite side, on unmixed with fraud or judg- setting ground part, aside his ment not for judicial <&wkey;25(I)— take Courts 13. Evidence county seat of city of Lubbock in state of notice Lubbock (cid:127) Judgment <&wkey;l38(2)Overruling motion to county Texas. 21. — against judgment by default insurer city set aside on judicial notice take Courts ground buildings purposely de- were county county Lubbock seat of is the Lubbock in stroyed by proper, insurer had fire held where Texas. state of investigated not fire. building more than four <&wkey;27 Where had burned state citation to Process 14. —rFaiiure filing prior aside county, months of motion to set Lubbock, city was in Lubbock that state against grant judgment new insurer and default held immaterial. buildings ground insured trial city of Lub- to state of citation Failure destroyed purposely by fire, insurer’s failure to be bock, held, court would where investigate building facts as destruction Texas, held immaterial. au- and want of showed thorizing overruling of motion. Rehearing. for On Motion Appeal &wkey;>935(2) Judgment <&wkey;t43(l2) de- to file 22. failure error 15. —'Where —'That having ample so, fendant, do was not to- failed “inadvertence?’ was due to an answer charge against supporting setting judgment by default. secure information ground aside for setting ground plaintiffs for aside made due cause was file answer failure default, appellate pre- court ment must ground setting for “inadvertence”-was to an charge sincerely sume default; mean- “inadvertence” aside insurer whom Where neglect. ing inattention, policy rendered default had been definitions, see Words other Note.—For [Ed. setting ground claimed aside for Series, Phrases, Inad- First and Second destroyed buildings purposely that and, having had been vertence.] ample so, do failed time to se- support appellate charge, cure information agent <&wkey;>l59(1)Negligence Principal and 16. — 'court must was not sin- attorney’s negligence. attorney’s clerk cerely made. negli- attorney’s Negligence clerk was &wkey;>t24(2) gence attorney. New facts relied 23. trial —Where ground upon as for new trial are not within - personal <&wkey;l43(14)Attorney’s knowledge affiant, Judgment absence names of wit 17. — prove during reached his office citation nesses can them should set out. which time failure file excuse trial, did On new facts relied answer. spe- new trial should attorney’s cifically, from his of- his of- are not within Defendant’s abs.ence during knowledge witnesses should be affiant, reached which time citation names and residences of fice fice did expects prove for failure to file not excuse defendant whom them judgment was in suit answer wherein set out. formal rendered by default. &wkey;>l50(l) 24. New trial should ac- —Affidavits company practicable. motion if <@=-143(12) Judgment defend- 18. —Failure practicable, setting If affidavits witnesses under circumstances to have ant’s they testify facts to which will out company should ac- day afternoon follow- until answer trial. motion for new diligence. ing appearance lack date showed representing firm de- member of law Where <&wkey;>l50(2) New 25. trial motion for new —On received absent when citation was fendant several weeks trial, reasonably appear proof must appearance date, failure facts relied will made another attorneys circumstances to wire local under i trial. attorneys at where court was held until reasonably On motion for new it must following appearance date, to afternoon ground of facts relied diligence, lack answer showed file formal made for new trial will be and another default could not be set so that reasonably appear they also it should aside. them are true and true. affiant believes >&wkey;933(l)—Every Appeal error 19. rea- indulged presumption support sonable <&wkey;l40(l) 26. New trial of mo- —Verification ruling motion for new trial. court’s insufficient, tion for new davit with reference held where affi- paragraph granting motion for to one recited Since charged “are every that matters therein on credible largely discretion, lower court’s n reasonable and belief.” presumption indulged information must be support ruling pellate on such mo- Verification of motion new trial in- por- sufficient, in that affidavit with reference tions. Digests topic oases Key-Numbered see same and Indexes <&wkey;For KEY-NUMBEB. Tex.) & MARINE PAUL PIRE INS. CO. EARNEST 3.W.) para- omitting parts, alleges tion of recited “matters stated formal sub * * * graph charged stance as follows: formation therein.” and belief (1) That the was tak- (the en the forenoon of &wkey;> wholly defec- Affidavits 17—Affidavit term), third óf the an- defendant’s assigned upon perjury if tive unless can be swer was filed on the afternoon of the same untrue. day. per- wholly defective .An affidavit (2) plaintiffs’ alleges petition That the assigned upon can if untrue. corporation, the defendant is a but does not <&wkey;>46 relating allege Exceptions, duly incorporated 28. of it was bill —Statute in ac- submitting exceptions to adverse bill of Texas, any cordance with the laws of or oth- proceedings party apply held'to state, er ant is does that the defend- 6). 1925, 2237, (Rev. subd. art. of ease St. conducting a fire insurance business providing Rev. art. subd. Texas, in was sued. lawfully unlawfully, either or or exceptions judge to ad- submit bill of shall doing policy at the time the was is- party if in attendance or his counsel verse sign correct, court, and, he shall to be (3) That the defendant’s business in and proceedings during apply and file trial held for eral the managed by of gen- Texas is case. of agents Houston, through at who received &wkey;>46Validity Exceptions, of of bill bill 29. of — purported mails what to be a citation upon approval exception depend of does not served Murfee at Lubbock. That opposing counsel. the citation agent Murfee is said to be the Validity not neces- does of bill of corporation. for the copy pe- That no of the upon approval opposing sarily depend sel, even coun- of tition was attached to the citation. That approve it filed and order since court said citation by general was objection received opposing counsel. of over agents on or about July, the 25th of days Court, about five Appeal after from District the date thereof. That . appear Mullican, Judge. it does County; from M. Clark citation that agent Murfee is the local company of the by Earnest husband Suit Mrs. E.W. and for Lubbock nor is the defend- Insur- Marine St. Paul Eire & ant to commanded to and make answer Company. plain- for Erom a ance petition any point appeals. tiffs, defendant Affirmed. said citation names in the state of Strong, Dallas, nor is there and Chas. body fact Senter & or statement in the Lubbock, appellant. Crenshaw, for declaring citation the suit is Garrard, Lubbock, ap- pending Lockhart & in the district court of Lubbock pellees. (4) That general after the fire agents endeavoring get report appellees HALL, a full filed this suit J. The C. on the loss and county July the statement of the of Lubbock material the district court relating thereto, 1926, against but at com the time of the issuance of the policyof citation pany had not on a fire insurance secured recover report. immediately upon said That covering receipt $2,500, house issued in sum citation, agents said policy. forwarded issued Citation was same described Dallas, asking to their petition J. E. that an- and served Mur- swer a Senter, made July 21, 1926, thereto. That appellant, fee, E. G. Senter, member of the firm regular Strong next term of to the said returnable court, Young, employed by general agents said day August, on the 16th give attention to appertaining alleged business house thereto, not in was destroyed by 18, 1926, Dallas at the time on March fire was and said firm citation, received the duly did not of loss Court convened return to days Monday officeuntil August, several being there- third month, after. misplaced morning citation was and on 16th‘ said in- August, being therein, office firm a Senter’s there no answer clerk brought appellant judgment by and was not to the attention filed for the full said Senter until after default was entered amount sued for. day August, rendered therein. That of the 18th On the afternoon an answer Senter was still ab- consisting general on the return demurrer from his office date men- sent citation, appel denial was and that it filed ac- tioned original lant. On the 19th for new clerk in said discovered office cident filed, day upon trial was date said citation had" 2d said September brought misplaced thereafter and not attention ’ trial, pray given first amended for new and had not been of the said Senter at- Thereupon telegram ing that default be set tention. sent Crenshaw, amended motion to Bledsoe aside. from at- said office Key-Numbered topic

<@soFor KEY-NUMBER, Digests cases see same and Indexes SOUTH á (6) requesting tbat Lubbock, to file Tbat defendant shows torneys them facts it tbe them. full and fair done a formal wbicb no reasonable de- shall tbat be disclosed (5)Tbat bad meritorious defendant following believing plaintiffs, ground or either policy tbe contains fense provision tbat responsible the destruction con- of tbe risk and to tbe material property, of this desire then it is the tract : discharge pay tbe off and in- if tbe policy be void “This entire plain- asserted tbe amount tbe claim misrepresented in writ- has concealed or sured petition. in their tiffs otherwise, ing, or circum- material fact concerning insurance, (7) sub- or tbe it is advised Defendant tbat shows stances in in ject thereof, of the insured if the interest tbat no believes and avers troduced in evidence truly herein, property tbe to sustain this cause tbe .swearing in- in- false fraud or case therein; allegations tbe either of material relating touching this to matter sured tbat tbe was offered was evidence wbicb subject thereof, surance, or after loss.” before whether or policy upon; tbat was tbe sued no evidence person as served offered to tbat tbe show states, in substance: further Tbe motion agent agent, in' or was fact tbe tbe local plaintiffs policy issued to was That W. E. agent; company; of tbe tbat no was evidence Plains, Dumas, defendant’s to tbat tbe Paul Eire & offered show prior .1926, and to March corporation That Company Marine Insurance is a 1926, plaintiffs January, al- bad duly of incorporated, tbe 15th it was or tbat it is or that premises. lapse on said to insurance lowed in tbe and is authorized to transact business loss com- resulted tbe fire Texas; Tbat tbe wbicb of state of tbat no evidence kind plaintiffs’ plained occurred of in or default character was offered at tbe time 18, 1926, morning March of 1 o’clock tbe except herein tbat tbe was taken policy days just of tbe after tbe issuance ten policy produced and ex- was upon. advised That defendant is and sued court, hibited in and it shown tbat tbe offi- information tbat tbe avers property bad been burned. immediately Tex., county, of Yoakum cers (8) Defendant shows tbat it is not and nev- fire, and circum- tbe discovered facts after er a resident of has been building de- tbe indicated that stances wbicb or of- and that it never has bad its domicile deliberately policy in tbe on was scribed sued prayer fice in said tbat tbe Tbe is willfully fire in- Tbat since tbe burned. and dictments default set aside and new grand bad returned tbe been granted, fur- trial and for such other and against persons county Yoakum two legal relief, special, and ther and indictments, charging them in said named with bearing equitable, as tbe facts shown on tbe property. willfully having said burned require motion shall or this authorize discovered circumstances the facts and Tbat equity. or in law county, Tex., tend officers of Yoakum said Senter, Tbe motion is verified E. G. procured tbat fire caused to show by Earnest, said states: acting' collusion W. E. some one with attorneys “Tbat one record plaintiff E. husband tbe Mrs. named, the defendant above and that the mat- Earnest, plaintiff tbat tbe Mrs. W. E. and things foregoing ters set and out motion chargeable respon- lawfully Earnest with knowledge for affiant; are new trial true sibility paragraphs therefor. this defendant that matters stated in charged upon knowledge and 7 thereof authorize credible infor- without to would wbicb belief mation and therein.” plaintiffs tbat tbe make tbe chargeable erty. prop- tbe destruction said assignment No of error was filed in tbe Tbat it relies information fur- court, only assignment trial of error nished to tbe officers Yoakum coun- appearing in tbe is the motion for new brief ty for statement of facts herein tbe Only prop- set out in which is full. reported Tbat there urged osition is in tbe brief as follows: show, are facts and wbicb circumstances show, plaintiffs, tbat tbe tend one of for the destruction of appearing allegations “It from the of the mo- responsible them, are tion and the evidence introduced the hear- ing impar- appellant ample property. full, fair, That a of the motion said and had in attorney employed represent an it in should made of such tial ports. re- cause, said and that the failure to file an an- Tbat defendant has bad time or swer in the cause was due to an inadvertence opportunity investigation. to make such an mistake, and and to the absence said injustice an it does not desire do Tbat tbe office, from his had a merito- plaintiffs, merely them, or either of defense, rious the trial court erred in overrul- opportunity to ascertain seeks tbe facts ing appellant’s judg- motion set aside present tbe in court if same there are ment.” facts and circumstances which tend to show facts, prepared plaintiffs, No statement of tbat sponsible either and au- tbe are re- required by rules, appears prop- thenticated for tbe destruction of tbe erty. in tbe record. (cid:127) Tes.) MARINE INS. v. EARNEST CO. PAUL FIRE I.W.) ; ing of than that hereinabove said cause other overruled. trial new motion there- set it further remembered forth. Be exception tak- record is a bill There court, hearing upon the the evidence recites which action en this argument counsel, and overruled refused default the fact in substance to set refused said motion said new taken ment was judgment aside, action and to which August; formal day 18th ruling then and court the defendant day of open presents 19th excepted on the filed new court and here now exception asks that the its August, this bill No. 1 first amended allowed, approved, filed as ordered same be “seeking to excuse thereafter cause, ac- which a cordingly of the record the date answer failure September, the 11th done this taken, said default when seeking plaintiffs’ D. 1926.” A. defense meritorious error, ex- any, complained The bill of action.” cause ception for new presented contains the motion then manner this court copy of in .full. After the trial set out as to entitle the con- contention exception proceeds county fol- motion the No. bill sideration. District court rule provides: lows : mo- be it further remembered that said “And taken to “There shall be.no bills of judgments for September, tion came on the court those rendered came D. A. law constitute matters at common attorneys plaintiffs citation, peti- proper -case, the defendant their and came the record upon-such attorneys, supplements hear- tion, its amend- their answer and following introduced, ing trial, the evidence a or in arrest ments motions for new Strong, defendant, judgment.” a witness the wit: True and final ‘My upon testified as follows: an Strong. true that the record contains [1] It I name is True firm of am member the a formerly Strong, Senter, & Senter' the trial court order entered Young. Strong I was a member of that firm the motion for that which recites July year. that Mr. E. 6. appellant excepted ap> gave the notice is the firm Sentdr member our' who has a peal, but, stated, as there is statement Co., Cravens, Dargan general contract with facts in the record. The rule is established agents representing Paul Fire & Marine In- bill of without dissent exception in this state that a Company, surance and all matters are di- .sent supply facts, cannot a statement general agents touching rect to him from the any legal may however full its recital matters of facts be. in connection with the St. Company. Jefferson, Paul Fire 230; & Marine Insurance 24 He Carolan v. Tex. Round opens all of the mail received the office and City Galveston, 612; tree v. Dull disburses it to the different to handle 205, Drake, 364; 4 v. S. W. Cates v. it, with instructions. At the time this citation McClure, App. 459, Tex. S. W. office, shown to have been received in the Mr. 224; Colley Wood, App. v. 32 Tex. Civ. trip E. 6. Senter had left on a for Decatur. 602; Ry. 74 S. Texas-Midland Co. v. W. Falls, Dumas, Wichita appeared where he O’Kelley App.) (Tex. in cases in all three towns. He did not return Ry. (Tex. August. until El Paso & gone the 19th Rhoades v. S. W. He was two or weeks, three (Tex. as I App.) now Most recall. the time 230 S. Parrish v. Parrish I was out town in Clarksville and Dublin. I S. W. August, returned about the 1st as I now re- that, a rule absence “It is familiar the also call, any my and this citation was on desk without every pre- facts, reasonable a statement anything upon file or which answer could be indulged sumption the consistent with bewill made or information or data on the loss. judgment.” pleadings support Parrish gave I young it to the man was in who our of- supra. Parrish, fice at the time and asked him to secure the files from agents, and I left the of- [2] In the absence of a statement of facts day. fice that I returned on the 18th and in upon must we therefore that suffi turning through- our docket sheets saw that ap cient evidence the court found that there was no notations on there of answer pellant having tigation guilty and its had filed, been been and when we made an inves- failing copy to find our inexcusable file office of an none, found immediately I time, wired and further answer in Bledsoe & Crenshaw here to file a formal answer con- did evidence not show that had a ” cerning the matter.’ meritorious defense. [3, 4] The rule is in order to aside The bill of states that the amend- things ap two a must ed motion for new trial was introduced in First, good pear: defendant had copy plaintiffs’ evidence. A petition, original answering -making for not his de excuse copy and a containing citation trial; and, second, on the that he has fense original the substance of the petition, are in- defense. Grain Co. v. meritorious Lawther corporated parts exception. the bill of App.) 249 W. 195. Com. S. Winniford The bill further recites: show fails to record The defense. If the facts stated “Be it a meritorious further remembered no other or. upon further evidence was as- motion can be considered introduced verified the hear- SOUTH holding upon evidence, djd introduced evidence the trial or stated the court not err Briefly in affidavits to the motion. attached no meritorious defense was shown. Kelly up- stated, appearing In El Paso & Southwestern in the motion the facts (Id., 99 appellees permitted 83 W. 855 on this issue are that the Judge 660), covering policy said: previously Neill issued an insurance January property lapse contradistinguished specific facts, “The policy defense, issued March that 1926, sued on was conclusions, must from relied thereafter, days existence must at 1 o’clock be be knowledge and their stated and ten sworn to if the facts are morning, mo- in the the fire occurred. or his advised the defendant is tion then states that and they not within his makes If the motion. credible information avers personal knowledge, and residence name county immediately after officers of Yoakum expects prove them he the witness whom must be fire facts and circumstances discovered stated, practicable, and, affidavit building had indicated that insured which very setting witness, facts will out the willfully deliberately testify accompany burned. to, been names of these officers motion. An af- must given, heard nor are to what someone else have fidavit as the witness relate as troversy on con- to the matters they stated discovered the facts which the facts affidavit to not do. The will made Therefore, as Mr. Senter so far motion. himself, to them must if affidavit witness concerned, is based this conclusion is hearsay, diligence such of reasonable the exercise the offi- no reason procured. must rea- It also could witnesses introduced as were not cers sonably appear will of such facts, affidavits, stating their they made ably another reason- further [plead- motion. The every theory attached recites that constitute defense to grand ed] fire since the have been could ** * county rendered. indictments returned have Yoakum against ing “Finally, are ad- motions this character charging hav- persons, them with two the trial sound discretion of dressed property, willfully but nor was burned court, and, particular record in the stated, persons are not names of these case shows abuse copies of the even with furnished the court indictments. ever, discretion, the disturbed will reasonably infer, may how- We * * * appeal. were his wife Earnest nor that neither “The affidavit to the motion is made byaone counsel, and, defendants’ The as to the sixteenth in the the named .indictments. paragraph, it in is words: ‘That the these has not that defendant motion further states paragraph in contained statements be- opportunity investi- make an had time true; that, alleged Heves to be the facts while although fire, it gation of the the cause as to paragraph in 16 are not within his own appears that the fire occurred more than five investigation, knowledge, he full has made * * * up- filed. and months amended motion was information received before the belief, states the in recited said facts appears investigation of It further that no paragraph view affidavit that facts. hardly necessary, are true.’ It is concerning the fire had been made the facts say principles stated, this of the any is attached one whose affidavit wholly insufficient, apparent is is petition. be said is that that can The most utterly nothing affiant knows about the the Besides, matters, suspects Earnest to some that either as essential defendant conclusions, the motion the states instead of way with the in some connected his wife are upon which facts conclusions should be based.” property, no ef- and that of the destruction up- the to ascertain has been made fort In the Eawther Grain Oo. it is held Case suspicion is based. such on which an that where issue fact as to directly raised, power not The motion does even the trial court has the is any way responsible appellees finally upon issue, pass judgment the are the fire, full and if after a for the but recites that the court should not be dis- except upon it shall be dis- showing of the facts' fair closed that there turbed a clear ground for opinion is no reasonable was erroneous. In our no such abuse plaintiffs, believing them, or either of the discretion the trial court is shown responsible justify reversing for the destruction of the as would this the property, judgment particular. then it the is desire defendant in either claim, pay discharge (article 2009) requires to affidavit off and The statute to the motion where a citation has been served Senter states “that at least ten day days paragraphs the matters thereof are before first of the term 5 and to which charged returnable, day it is exclusive of the service information return, and belief answer of the therein.” is the defendant shall statement of conclusion, ahd second a termine whether the information and the parties before the court be filed could de- term, appear- and before call of return is credible day, pro- ance docket reasonable, article belief who names of the appearance call of information, docket, vides or at furnished to- appearance day, plain- gether with facts stated should may against any part take tiff at least be made a of the duly has been who defendant served with the facts circumstances should have been Tex.) process, is not the was filed until assignment answer. The record did not take appellant’s; mental error. accordance other 269 S. W. 496. We have sidered they assignments any, and must be they 224; Armstrong proper assignments of the trial based in petition lege insists the ments of grounds upon inbefore osition, assigns & provides transcript further, signments by filing thereon, them, of the consists ther the motion were filed appellant’s unless the a motion trial court. only T. that the Urges the record and are unable to find is an error” the full. The sole ^[8] [5] We are further [6, conducting require Dunlap the lower court 48 W. default should be set third judgment, waived. that defendant was present assignments state 7] The to that which should be the clerk state, the issues are not abandonment S. transcript, in the motion. is insufficient because it that all errors set McDaniel v. Turner v. Carter that before separate appellant grounds themselves, for new from assignments its consideration. appellant Hdw. Co. error, eight of error in this case with and fails to brief out, fundamental As this judge motion for therein considered as error, which he a 'fire insurance and reasons the court erred in grounds. proposition of the court trial court erred while v. the laws of and, different has as its afternoon assignments distinctly specifying (Tex. and was in for new trial Elliott, and need insists that the trial has term, clerk’s may meritorious, of all the proposition to file error insists in this and shows that (Tex. in the trial not cannot overruling We are of PAUL PIKE relies, until the of error here. error which urged duly incorporated new trial which the hereinbefore 635; The aside, error. St. propositions previously carefully distinctly than grounds. constitute office, 20 Tex. abandoned unless below of'that opinion App.) form not be R. “assignment of that no grounds urged in this but the action J. other E. F. us for agency App.) is addressed does not al forenoon he shall court. in brief, the motion to relating error, and, insufficient that where set overruling failure of of a 275 W. tested appear in plaintiff’s takes appellant art. day. filed, court, by reviewed repeated error, if quirement, Elmberg entering specified that the L., plaintiff grounds No filed an state of opinion review, the as answer to be assign Murfee, shown, funda Hambel v. out in the not MARINE While think the citation is court, based the S. prop here- S. F. App. part con fur any by the is the local file in S. !.w.) tion to be situate in the state of because it bock further attacks the 40 Am. Texas.” The citation heard the because there is no fact or statement in the bock to H., return, Talley (Tex. mon the in against before the that tain the Aztecs v. Noble 623. service fered ported by in this suit Waterworks agency, Moore, take is the body exception, sue of of the citation. the citation served state of to state that county, [9] The [11-14] Since ^[10] Even .INS. E. be found in Lubbock a statement writs and Am. etc., Ry. city .is all the material facts judicial Murfee, county of the citation which declares that said held at plaintiff’s petition “a Constitution, provides bearing upon county point diligence Rep. pending clerk of the district court of Lubbock is in the Tex., by it was not CO. v. EARNEST Texas, who resides in nor was state. This contention loss or appellant, Texas, private corporation the seal of we would be petition the evidence and make answer to the the record. and commands the sheriff to sum does Davis, evidence, Lubbock,” honorable United Mutual Fire Ins. at the next Rep. 46; be had. county, Tex., insuring property allegations tending the courthouse in said Co. Co. v. notice that the process seat of Lubbock As sufficiently your Murfee, in the district court of of facts instead of had been Olive damage It further “a sufficiency as shown which is said in the cita necessary Kennedy, Burke, county, command the defendant and we must There the issue of Murfee’s good.' corporation, by the court. recites that for said etc. The substance of district court of Lub complies Fluke, compelled Lubbock Carson v. failure of the citation 211 S. W. 653. regular should Texas, bearing upon Appellant transacting signed 'by these criticisms we set out in the proven. Lubbock, agent, alleges be, necessary to be and was no him. proof necessary. that the city Article fire.” deputy, doing of the citation corporation, of “The State of is immaterial. county term with this re county, to show dili- the sheriff’s to hold was served attached The courts Dalton, that J. E. Appellant the court presented county Order of Louie F. not a bill of 323, 331, Lubbock Houston business business 5, thereof, style serving and at alleged in the whom Tex., § body Lub copy sup- sus 12, of is- in if WESTERN REPORTER 293 SOUTH gence, port sup attorneys requesting was them to Uubbock, but that offered in sent to the evidence require were both insufficient file a formal answer. Upon affirmative action the trial court. South True Mr. Surety Gulf, Strong, western Insurance Texas a member firm of Mr. Senter’s dur- Ry. (Tex. ing July August, 1926, &W. 196 W. Cook testified Mr. Steel, rep- v. App.) Keator Civ. Senter v. Case was the member firm of his who company, S. W. 1099. resented the is therefore affirmed. and that all matters sent direct to him general agents; from the that Mr. Senter opened all the mail received in the officeand Rehearing. Motion On disbursed it' to different to handle orig- rehearing The motion for attacks the it with instructions. He further testified opinion in far inal error, as it holds that received, that at time the citation was any, properly presented has not been Decatur, Mr. and Palls, in Senter was Wichita by appellant’s either record brief. Dumas, appearing in in cases all three up- primarily While the affirmance was based towns, and he did not return until about the say original defects, on these opinion we did day August, gone but was some three that the did not show its weeks, or four most motion for new trial it had a meritorious he, Strong, time Mr. was out of the office defense, and that the motion was further Dublin; however, Clarksville and he further sufficient in that it showed that there has been testified that he returned about the 1st of filing an answer exercised August and that the citation was on his desk prevent time to We without file or information or data enlarge upon phase case, did not .of on the loss from which answer could be justice deeming pellant questions unnecessary, but in proper think it to discuss these we [16] If Mr. Senter was the member of the light of the record. opened firm who the mail and distributed only proposition urged appel [15] The among the business members, the other then by any brief, unsupported assignment lant’s filed how is it that the citation was found on Mr. or in this its Strong’s August desk on 1st? If the clerk very language confesses that there has been misplaced had lost it as Mr. Senter arrival, man such ner of and carelessness states, and it was not called filing an answer that the motion should open day, to his attention until'default proposition asserts have been overruled. The that because it placed ed the mail and the citation on Mr. appears allegations from the Strong Strong’s desk on 1st? Mr. of the motion and evidence introduced states that he returned to office fail the motion that the August, through turning 18th firm’s tion on there and on ure to file an answer to an inadvertence and mistake and to the absence of said that the cause “was due there was ho nota docket sheets saw having an answer been filed. etc., from his office” happen case docket How does it the motion the court erred by any judgment. seen “Inadvertence” ed if the citation never been set aside Unfortunately inattention; neglect. means until Mr. Senter returned the 18th? Strong says, appellant, further “When we made this is too true/and the record Mr. copy our of an an find office shows it. swer, none, immediately and I July 21, The citation was served 1926. The to wired Bledsoe file á formal judgment by Crenshaw default was not rendered until answer.” If this business was the August 18th, being day that the third of the Senter, special and alone to look business of and he Mr. In his motion for new trial Mr. return term. employed by general agents says Senter this citation was received -happen by it appellant’s general agents, Houston, how does that Mr. at Strong Strong attending July, to it? If Mr. is the 25th of and forwarded about Dallas; was authorized on the 18th to attor wire him that he as the mem- Strong Young, them to ber of the at neys answer, why Senter, a at Lubbock file formal firm agents August employed general appellant not he Or, have sent the wire on could 1st? still, business; give better not a for to that that he could to was not citation was received and did not attention prepared August mal have been in of Dallas at the time the answer firm, in the officeof his 1st and district clerk mailed at Lub Strong ly return to his officeuntil several If Mr. found the citation bock? days thereafter; ing 1st, that the citation was mis- on his desk then Mr. Sen therein, saying

placed in a clerk was ter is mistaken it came to office brought during until to his attention after de- not his placed by his absence office and was mis judgment rendered, charg fault was that it upon because he in some clerk his office. He day citation; absent the return it the clerk in the es that' was failed to his was office who accidentally bring a clerk the matter discovered of the citation to misplaced, day judgment it had been until after default attention telegram By every principle and as soon itas was discovered a rendered. of law Tex.) clerk is Mr. Senter’s sence during office, file agents, have practice ment, swer tion must be parently might ter’s we sustain denial whether, upon those matter lower utable to the the trial sion. certainly in this case. What was says some answer was 331: record that shows refusing ing mistake 18th of application formal answer answer. the action applying the refusal of it has involved the a matter of law. The clear discretion.” Mr. record fails to show. commanding due to by ance under torneys Appellate Judge ably [Tex. Civ. . “In ^[17] [18,19] true inadvertence; whose default. Whether appellees. answer was negligence, on such motions equity Strong, App.] result. legal the failure day firm, revising from his rules which entitle prevented (Cotulla 'proposition excuses If it all the cofirt, Wheeler filed before mistake, which in so nor largely of this a new at Lubbock until wiring following has A August. They The failure of is mistake right, courts treat with App.] for their of trial general tibe it ór the While the far indulged the evidence in the circumstances brought n admitted him office have been it State court, clearly shows there is arrived or manifest local counsel a 226 S. W: particular does not chargeable, the result of every further states that filed on or courts resulted appearance Ables v. the citation file an demurrer failure we are appearance clerk negligence. it has been which is Bank v. not to reverse the we must 797), There was utter lack of appears says members the mistake is (McCaskey inquiry failing think the that Mr. Senter’s him PAUL three not a agents, reasonable it was proper support of the district knew excuse the case; proposition application because the same conclu 432). discretion of the answer to of Mr. Senter’s to file motions for new great Donley, abuse of by default, mistake? or four at answer on the their syllable that the to file an'an a FIRE Herron chargeable wire local failure to file afternoon violation inadvertence record, informed Mr. reached but, would due the citation the day proposition As said of the rul v. McCall by a .a deference been, diligence. grant presump Mr. to file a office, appellee badly whether & MARINE INS. uniform general general appear- counsel Senter, judicial Vardeman formal weeks, morning it was attrib- one such would it court, party prob- [Tex. Sen is a due ab the at so as Martin, a ; 5.W.) ed absence of Mr. right his office to render action had laid the ter timony it clerk, ment. yet Senter’s according kept member ployed away able to agents they able absence in time to filed, Co. v. W. any mistake. reason take of a appearance day, has failed to file an answer sel ly, 27 W. served with citation ants or 173 S. W. v. Freeman v. mistake the judgment vidson, of accident, ley 14 Insurance Co. v. side, Scrivner Surety ^[20] case where a before some manner Stearns S. one’s S. W. from the 25 715; Shipp ground for a new absence of to be inadvertence. Another reason is part, v. a case fraud or appellant company him can be days prior unmixed from who, Nothing Skinner, needed. None of Tex. Upon Rice, appellee. Ind. 25 Tex. Civ. 20 Tex. their who CO. counsel, unaccompanied with affidavit careless 307; August 1st, v. member of the or heard from. The 254; to Mr. prevent judgment by has been rendered after answer not made Exactly such failure is stated v. a'law where the his office presumably, during Malone, improper Neyland, officer of the citation on Mr. Supp. general v.Co. properly not scapegoat, 21 Tex. counsel, three or four Edwards, misleading Merrill v. day following appearance Harn v. is EARNEST 60 Tex. 118; judgment by responsible, appellant shows Commonwealth defendant, Senter’s ground a defendant’s firm, Lipscombe clerk, This showing Senter, clearer than that no would court in Anderson employed only 403; Gulf, agents whose inadvertence App. nearly 30 clear where fraud or Tarrant when conduct or because of App.) 182 S. W. M., unavoidable or excus 171; Cromer is not a case where a rendition was violated but Mr. or' trial. Phelps, Tex. 21 firm termed, Union Central Roberts, make had court. T. Western App. affidavit, conduct of these K. & T. 134, waiting to the Tex. Mr. had, a month weeks mistake, Strong’s though & W. (Tex. having exculpates setting 773; whose employing only the record. County opened 530. Mistakes of the 60 S. negligence clerk services were default. One Southwestern appellees the clerk Strong 65 counsel, Strong’s mistakes, It B. & C. Co. 737; 78 Tex. latter, Union Tel. Ry. Civ. is that one Tex. turn, Foster until the protract its coun result any business opposite prior v. desk on aside v. general the let defend charge a time simply v. 128 S. fraud, Burn judg App.) legal Live busy Sgit 597; any, 278; mis Life day Mr. tes em Da In v. a (Tes. 293 SOUTH 686 (without 882; affiant, Senter) App. 193, Mr. “is advised” covich, 66 S. W. the naming 28 Tex. Civ. party imparting App. informa the Smith, 43 the Civ. Tex. Wilson v. tion), (Mr. Senter) (Tex. 1086; credible Civ. and “avers Clements Martin v. S. W. Gillispie, (without giving name of 437; 27 information” the App.) v. Power 193 S. W. informant), Chicago, Yoakum R. the “that officers of 370; the v. Western Lmb. Co. any them), 644; county, naming (without App.) (Tex. Tex.” 180 W. S. Civ. G. I. Wheat v. Ward “immediately Imp. facts County fire discovered Dist. No. the Water (without stating (Tex. and circumstances” what App.) v. Schultz S. W. Civ. they discovered), 700; Flana facts or circumstances App.) 227 S. W. Burk building will gan “which indicated that the 60 S. W. v. Holbrook fully deliberately Berry, burned.” None Ins. v. Fire Texas the these testified App. officers n the appellant motion, original opinion the nor did the attach that in attempt the. We any its ty coun motion the affidavit of Yoakum it had a that show incredible,- officer, wholly which show insufficient. meritorious defense was tending any support theory, again ed the facts the motion have reviewed We court, record, nor does the motion reason state that the are convinced officers, motion, affidavits, pro or' their were did this,feature even not err in credibility duced. The of the officers who it. appellant Paragraph furnished the the information was to this relates case, vaguely for the trial determine it is inti- feature mated that probative appellees possibly Mr. Senter. have force way facts and the legep. circumstances al- the de- which been in some connected with possessed tending building, officers said struction averments of the but the building willfully positive show de Mr. are not direct either ' liberately burned, appellees really Senter or client believes in the were para- connected with was likewise a matter for merit of a defense. It is stated in such appellant graph the fit and since did not see 5: enlighten the trial court these knowledge “That this without defendant is matters, essential the motion was charge which would authorize it to make the ground. Hodges Ross, overruled plaintiffs chargeable that the struction of said are with the de- * * * property; full, App. 437, that a Neal impartial investigation fair, and should be made Com. Co. Golston reports; defendant has not had of such W. 1124. opportunity to make such investi- time nor gation; parties It [22-25] is stated two had injustice desire to do does not been indicted for building, the destruction of the merely them, plaintiffs, or to seeks an either opportunity may reasonably to ascertain the facts and but we infer from present facts if there are to and tiffs, destruction of the case in court appellees the motion that neither of the had plain- circumstances tend to show the indicted, nor does the motion name them, responsible for either of parties charged, attaching copies property.” they were, indictments show fact from paragraph 5, does might which the court motion recites: In burning have inferred that inves- that if full fair “Defendants show culprits appellees. building made, acted for the tigation is. it shall dis- .of the facts ground ample reasonable there is no closed that that the It is clear them, plaintiffs, believing or either of sort of exercise of to se property, responsible then and serted of the destruction this information the information of cure pay off it is the desire court, and, because it failed to do the so, discharge as as- amount of the claim must plaintiffs herein.” in their sincerely idea advanced in not- the appellees building motion that connected shows that record [21] The building prior pure destruction months with the more than burned filing 4% supposition ly a conclusion based the failure presumptions imparted by and information make the the motion whom declares destruction build unknown incident to the Specific credible. facts rather of dili than ing gence want shows If must stated. the facts are trial court to over conclusions ground. as authorized course, personal knowledge Of not within motion on rule the affiant, names and appellees, residences the wit or either of burned expects prove done, a com nesses whom them building had it would be out, and, practicable, defense, plete in the should be the affi but there averment setting witnesses, they did, of out the the facts Mr. Senter does davits motion that testify, they they did, should that to which pany will accom- that believes not swear he good or reason the motion shown swear that he had or credible he does information procured. regard could not be affidavits It to it. The extent of such with appear reasonably allegation that (not also the must “that the defendant” is „ (Vex.) MARINE & INS. PIKE CO. v. EARNEST ST. PAUL 687 !.w.) 229, Judge Jefferson, upon In another 24 Tex. made Carolan v. of trial, be these facts will reasonably appear that Roberts said: and it should they true, affiant believes that the exceptions all “The to state of assumes' bill pre- essential exceptions, of facts; being them- be true. None these bill the the but a of required agree requisites granting motion it were not appellee instance, the first was not pear therein. except stated, bound to see that the facts were [26, mo 27] verification of Mr. Senter’s might necessary present ob- far as be insufficient, the affidavit tion in that is jection evidence; he to the and indeed portion set the motion reference to of control over it.” arson, ting recites : defense * * * Shapard, paragraph In the Tex. case Madden v. 3 5 “The matters stated charged Judge and belief 50, Wheeler, passing upon information are therein.” the suf Ry. Kelly (Tex. & v. El Paso S. W. ficiency trial, a for of motion said: new Calyon 855; State, App.) v. 76 W. Civ. 83 S. question “And, reason, for same when Cunningham 591; v. Tex. Cr. R. ought brought up here, for the record revision 148; App.) (Tex. W. Scran Gaines S. facts; accompanied a statement 183; Tilley, Mut. Ginners’ ton v. Underw. may otherwise, we have of determin- no means Wiley (Tex. App.) W. 147 S. v. upon ing propriety application. In 631; W., Abiline, v. Ind. & & T. T. Co. T. us, the ease before there is no statement T. 185 S. Co. facts.” per wholly An affidavit is defective Drake, In the case Dull v. assigned upon if Wil can be it untrue. 364, judge said: Willie Lewis, Mays Lyman, lis v. Tex. attempted bill it “In this case to make Garza, Tex. la Cook Dev. exceptions purpose a statement of of serve Cooperage L., B. M. Co. Dallas by incorporating it admit- evidence' into App.) 268 S. Woodenware to show ted the know of no this method W. 769. testimony. importance rejected We ' authority bringing have hereinbefore said is def- What we for the knowl- proved upon ap- edge trial court the facts á insistence that this erence through bill the medium of a of ex- of the cause ceptions.- merits, peal on its should be considered brings to our attention Such bill presume, meaning, merits we rejected testimony, or such as has admit- grounds for a it states in so far as objection; but introduced such was ted over We did con- should be considered. part complaint, of the case and formed without passed upon the various it and sider in jury, find its must the court or made before original opinion, in- have entered -but facts; place it otherwise in the statement of our discussion to make the additional will not be noticed.” holding clearer. rehearing appellant the motion [28, In dis a clear 29] These decisions draw “inadvertently pro court has fall- this sists en into error” the two the offices of tinction between holding the error of statute, ceedings. article While motion for new judge the court in provides shall that the submit subd. properly presented party, a bill of exception is not trial to the adverse a bill may exception. possible and, that we have counsel, It attendance on inif error, sign correct, it not done inad- fallen into but fell file he to. vertently. proceed all applies If we article think painstaking very a of careful and final ings judgment the case. The trial of all hand. In the authorities view Au case on rendered nearly exceptions re- motion for 18th, the fact gust bill while the question, judge hearing signed the 11th is concentrated until trial September briefly It does thereafter. it further. discuss we will presented oppos ever is some confusion want and. approved by ing and indeed harmony among counsel the decisions exception validity proven upon does not bill the its the facts whether depend approval op necessarily trial should a new aof may counsel, approve posing appellate presented for the court preserved and objection exception, even it filed over and order in a court prepared bill opposing counsel. and authenticated statement mandatory, admitted, the statute is facts, This the cases cited must be appeal per even opinion holding, original and it sustain our judge right, appel- fected motion cited not one the cases purpose, to point. made for that amend the rehearing is in lant in its holding so as to conform to make bill of the evidence Our reason facts, it from presented strike the rec statement be than of facts should rather exceptions clearly Bank v. Wichita State & Trust ord. Davis bill early S. W. 585. The in some eases fol- Co. certainly have no such au- court would lows: SOUTH * employee injuries in liable to for sustained of not thority dealing statement in- with the using such tools. facts. evi- preservation of the We think Appeal Court, Jefferson from District presentation and its in dence the lower court Judge. County; O’Brien, Geo. C. through appellate the medium in the against by par- by George agreed C. J. Mouton to Suit of a statement of facts by Company. Judgment approved for the Stout Dumber and ties or their counsel Reversed, plaintiff, appeals. than judge method and defendant is a better safer and by bringing and remanded. in a bill of by opposing required signed coun- to ap- Dycus Shivers, Arthur, for of Port sel, and .which be amended or even pellant. by judge appeal. stricken ap- Arthur, White, for Wistner Port ruling our former we adhere to Therefore and overrule the pellee. rehearing. motion for HIGHTOWER, suit C. J. This was Eifty- appellee, Mouton, George in Eighth Jefferson district J. O. court of Stout, appellant; was J. STOUT LUMBER CO. v. MOUTON. C. engaged the lumber business under the in (No. 1518.) Company, trade-name the J. C. Stout Dumber seeking damages plaintiff for Appeals to recover Beaumont. Civil of Texas. Court of injuries April 4, alleged personal 1927. been sus- to have consequence negligence him in tained <?n <&wkey;7l3(3) 1. and error court’s Appeal —Trial appellant. case the with a issues, was tried rulings judg- on demurrer must shown by jury upon special, and submitted is not re- order, ment'or formal written and in and resulted and verdict viewable bills of exception. appellee $1,250. in favor of for ment rulings demurrers, gen- court’s Trial on action, plain- The cause of as made by judgment special, shown must be eral n stated, petition, substantially formal order of tiff’s some written the court merits, rulings alleged entered on its and such cannot follows: that on about the 1-Ie presented exception. bills of review ap- March, 1925, employ of pellant Arthur, in the yard his lumber Port Damages t&wkey; 2. 148 —Petition in action for per- and that on that he was directed allege injuries sonal should that doctor’s bills by appellant put clasp oh an iron bills were hospital reasonable. shed, door damages per- lumber the doors of a Petition in recover suit to injuries alleging might necessary; in should doctor’s bills sonal be fastened when hospital charg- bills that such bills or pellant negligently plaintiff failed to furnish es were reasonable. reasonably safe tools with which to do the door; clasp putting on the work <&wkey;352(5) Trial in 3. submitted per- —Issue plaintiff should have furnished negligence injury sonal action relative in put failing enable him a hammer so as to furnish safe tools erroneous in held assuming door, clasp failure. instead on Special plaintiff weight issue submitted court in action iron furnished to window injuries, relative to defendant’s door, putting clasp his use in negligence failing refusing to furnish weight proper and that the window or plaintiff work, with safe tools with which to reasonably plaintiff’s safe tool for use in it which erroneous assumed failure to appel- door, putting clasp plaintiff furnish do tools was to safe furnishing guilty lant was the window doing injury. work he was directing plaintiff weight to door; clasp charge putting <&wkey;2’l him to use it in 5 —General on the Trial should 4. given clasp nailing case submitted on special plaintiff ex- issues, while guide legal jury or to define terms. cept weight, the window it broke the'door with or instruction General should forefinger finger on his and caused or index given special where case is submitted not be injured right his necessary hand be so it became necessary except guide issues,. where it finger amputated; to have the answering jury issues, special some one more injury plaintiff a result that as of such suf- legal define terms or to used in physical pain an- fered much guish, mental charge. hospi- incurred doctor’s bills and 102(8) servant <&wkey;IGI, Master —Em- injury, treating tal bills furnish, use care need ordinary ployer consequence linger loss of the earn- safe employee reasonably appliances. ing capacity money labor and earn duty Employer’s employee measure damages, greatly reduced; and that ordinary employee care to furnish rea- to use consequence aggregate, appliances sonably safe tools or with which to $10,000, juries, was for which he sued. do, he was directed to if em- do work ployer and' demurrer,’ ordinary Appellant respect, answered used care he is topic Digests Key-Numbered oases see same KEY-NUMBER in all and Indexes É=>For

Case Details

Case Name: St. Paul Fire & Marine Ins. v. Earnest

Court Name: Court of Appeals of Texas

Date Published: Mar 2, 1927

Citation: 293 S.W. 677

Docket Number: No. 2781. [fn*]

Court Abbreviation: Tex. App.