Forrester v. State

459 S.W.2d 698, 1970 Tex. App. LEXIS 1957
CourtCourt of Appeals of Texas
DecidedOctober 22, 1970
DocketNo. 559
StatusPublished
Cited by2 cases

This text of 459 S.W.2d 698 (Forrester v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forrester v. State, 459 S.W.2d 698, 1970 Tex. App. LEXIS 1957 (Tex. Ct. App. 1970).

Opinion

OPINION

SHARPE, Justice.

This is a disbarment proceeding instituted in the name of the State of Texas by the Grievance Committee for District 15B, State Bar of Texas, against Jack L. Forrester, appellant here. After non-jury trial, judgment was rendered disbarring appellant as an attorney at law and enjoining him from performing legal services and various other specific activities.

Although the judgment recites, among other things, that the trial court heard evidence, no statement of facts has been filed. The record on this appeal, therefore, consists solely of the clerk’s transcript.

Appellant asserts five points of error, as follows: “(1) Final judgment of the trial court is defective in stating that appellant had counsel in the trial of the cause; (2) Failure of the trial court to conduct the trial before a jury; (3) Failure of the trial court to make findings upon which the final judgment is based; (4) Failure of the trial court to dismiss the cause at its inception on motion made for dismissal by appellant; and (5) Failure of trial court to abate the cause upon appellant’s motion for abatement.”

Appellant’s argument under his point one is that although he had been represented at one time by Carl A. Parker, an attorney at law of Port Arthur, Jefferson County, Texas, who also was a member of the Texas Legislature, that Mr. Parker had been discharged by the trial court several months prior to the trial on the merits.

The judgment of the trial court in part recites the following:

“ * * * and the defendant, Jack L. Forrester, though duly served with cita[700]*700tion and having filed his answer herein, and having been notified, together with his attorney of record in this case, of the setting of this cause, failed to appear, as did his attorney.”

The record reflects that in March 1969, appellant filed with the district clerk of Cameron County, Texas, an affidavit setting out that he had employed Mr. Parker to represent him in this cause. On the 17th day of March 1969, Mr. Parker filed his motion for Legislative Continuance, stating that he was attorney for the defendant in this cause. The trial court granted appellant’s motion for continuance based upon this affidavit. By letter dated September 9, 1969, addressed to Davis Grant, State Bar of Texas, with copy to Carl A. Parker, the bailiff of the 107th district court, notified the attorneys in this cause of the setting of this cause for December 15, 1969. There is nothing in the record to show that Carl Parker attempted to withdraw as counsel for appellant or that the trial court ever granted Mr. Parker permission to withdraw from the case. An attorney of record in a given cause shall be considered to have continued as such to the end of the suit in the trial court unless there is something appearing to the contrary in the record. See Rule 10, Texas Rules of Civil Procedure; Pride v. Pride, 318 S.W.2d 715, 719 (Tex.Civ.App., Dallas, 1958, n. w. h.); Kendall, et al. v. State, 51 S.W. 1102 (Tex.Civ.App.1899, n. w. h.). The trial court therefore correctly concluded that appellant had an attorney of record as of the date of trial of this cause. Appellant’s point one is overruled.

Appellant’s argument under his point two is that he was entitled to a jury trial in this case under the provisions of Art.' 316, Vernon’s Ann.Civ.St. That position is not well taken because Art. 316 was repealed by the State Bar Act and Rules Governing the State Bar of Texas. State ex rel. Chandler v. Dancer, 391 S.W.2d 504 (Tex.Civ.App., Corpus Christi, 1965, wr. ref. n. r. e.). There is nothing in the record before this Court to show that appellant ever deposited with the clerk of the district court the jury fee required by Rule 216, T.R.C.P. Under these conditions, appellant was not entitled as a matter of right to trial by jury. Appellant’s point two is overruled.

Appellant’s argument under his point three is in substance that the trial court erred in failing to make findings upon which the final judgment is based. Principal reliance is placed upon Rule 306, T.R.C.P., which reads as follows:

“The entry of the judgment shall contain the full names of the parties, as stated in the pleadings, for and against whom the judgment is rendered, and shall carefully recite the finding of the jury, or the several findings, if more than one, upon which judgment of the court is based.”

Since this case was tried before the court without benefit of a jury, Rule 306 has no application here. See Advisory Opinion by the Sub-committee on Interpretation of Rules of Civil Procedure, State Bar of Texas, 5 Texas Bar Journal 95 (1942), 8 Texas Bar Journal 8 (1945) and McDonald Tex.Civ. Practice Vol. 4, Sec. 17.09, p. 1333.

Appellant states in his brief that although he did not request of the trial court findings of fact and conclusion of the law, he called the court’s attention to the omission in the judgment of findings of fact. The record reflects that appellant’s complaint as to the absence of finding of facts in the judgment was contained in his motion for new trial. There was no request for such findings filed independent of his motion for new trial. Appellant cites J. R. Phillips Inv. Co. v. Road Dist. No. 18, 172 S.W.2d 707 (Tex.Civ.App., Waco, 1943, writ ref.) as authority for the proposition that the trial court in this cause should have recited findings of fact in the judgment. The trial court in Phillips did not recite findings upon which the judgment of the court was based. The Waco Court of [701]*701Civil Appeals said in response to this point of error: “However, it does not appear that this matter was called to the attention of the trial court, nor was there any request made of the trial court that he file findings of the fact or conclusions of law.” Moreover, the trial court in his order overruling appellant’s motion for new trial expressly held that there were no disputed fact issues. In such cases it has been held that findings of fact are unnecessary even when requested. Quarles v. State Bar of Texas, 316 S.W.2d 797 (Tex.Civ.App., Houston, 1st, 1958, no writ); Rolfe v. Swearingen, 241 S.W.2d 236 (Tex.Civ.App., San Antonio, 1951, writ ref. n. r. e.); Hooker v. Roberts, 330 S.W.2d 493 (Tex.Civ.App., Eastland, 1959, no writ). Appellant’s point of error No. 3 is overruled.

Under his point four, appellant asserts error because the trial court failed to dismiss the cause at its inception on his motion requesting such action. Here appellant argues that in his original answer filed herein and in each of his subsequent pleadings he stated and repeated that he was not an attorney at law and was not authorized to practice law in the State of Texas. Appellant reiterates such assertions in this Court.

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Bluebook (online)
459 S.W.2d 698, 1970 Tex. App. LEXIS 1957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forrester-v-state-texapp-1970.