American Supply & Equipment Co. v. Steves Industries, Inc.

353 S.W.2d 239, 1962 Tex. App. LEXIS 2128

• Court: Court of Appeals of Texas
• Decided: January 10, 1962
• Docket: No. 13872
• Status: Published

Opinion

POPE, Justice.

Steves Industries, Inc., sued American Supply & Equipment Company and A. D. Lee for the balance owing on four promissory notes. Defendants answered by un-sworn denial. See Rule 251, Texas Rules of Civil Procedure. In January, 1961, plaintiff’s attorney in San Antonio, phoned defendants’ attorney in Houston, and, they selected February 10 as the trial date. That date was confirmed by a registered letter sent to defendants’ attorney on January 11. Defendants’ attorney withdrew from the case, and on January 24 they employed new counsel. Plaintiff, on February 1, by registered mail, notified defendants’ new counsel of the February 10 setting. The defendants at no time prior to trial conferred with their attorney. On February 9, defendants’ counsel filed a motion for continuance which stated that his clients had been unable to confer with him. He also phoned the trial judge in San Antonio, who directly informed him that the case was set for trial the next day. When the case was called for trial, defendants did not appear either for trial or to urge the motion for continuance. Plaintiff proceeded to prove its case, and obtained judgment. Defendants’ subsequent motion for new trial was overruled.

The record shows no diligence on the part of the defendants. With the case already set for trial, they at no time conferred with their attorney. No reason for this failure, or for their inability to appear at trial, is offéred. Moreover, even if there were grounds for a continuance, nobody appeared in court to urge them. The trial judge told defendants’ counsel that the case was set, and nobody did or said anything to lead him to believe otherwise. The judgment is affirmed.