Patrick v. Callan

Court of Appeals of Texas

Patrick v. Callan

353 S.W.2d 40, 1961 Tex. App. LEXIS 2455

CourtCourt of Appeals of Texas

DecidedNovember 22, 1961

DocketNo. 3965

StatusPublished

Cited by5 cases

This text of 353 S.W.2d 40 (Patrick v. Callan) 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

Patrick v. Callan, 353 S.W.2d 40, 1961 Tex. App. LEXIS 2455 (Tex. Ct. App. 1961).

Pincite

Opinion

WILSON, Justice.

The trial court dismissed plaintiff’s action on defendant’s plea of limitation, the judgment reciting all matters of law and fact had been submitted to the court. The parties stipulated: plaintiff’s attorney was employed by an insurance company to institute a subrogation action arising out of an automobile collision occurring March 2, 1959; suit was filed April 4, 1960 by mailing the petition to the clerk with a cost deposit; no copy of the petition was enclosed in the transmittal letter, which requested only that the instrument mailed be filed. The clerk mailed a receipt for the cost deposit. Since no copy of the petition was furnished the clerk did not issue citation when suit was filed. It was not issued until March 16, 1961.

No findings or conclusions were filed or requested. Plaintiff’s attorney testified failure to send a copy of the petition to the clerk was inadvertent; that he intended that citation be issued, and did not discover it had not been issued until about March 16; that his failure to make the discovery resulted from his reliance on reminders which [41]*41he received from the insurance company for which he handled a number of such suits, and the fact that he had not received a reminder about this case until the time he discovered citation had not been issued. The petition alleged defendant’s address.

In order to toll the statute of limitation by the filing of a suit there must be not only a bona fide intention that process be issued and served, but diligence as well. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 872; Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 631, syl. 4; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93, 95 ; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16.

The evidence is sufficient to support the implied finding of the trial court, who was also justified in concluding that although the attorney’s failure to have process issued was understandable, in the press of business, he properly relied on a reminder which was not sent to him with diligence. Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

WILSON, Justice.

The trial court dismissed plaintiff’s action on defendant’s plea of limitation, the judgment reciting all matters of law and fact had been submitted to the court. The parties stipulated: plaintiff’s attorney was employed by an insurance company to institute a subrogation action arising out of an automobile collision occurring March 2, 1959; suit was filed April 4, 1960 by mailing the petition to the clerk with a cost deposit; no copy of the petition was enclosed in the transmittal letter, which requested only that the instrument mailed be filed. The clerk mailed a receipt for the cost deposit. Since no copy of the petition was furnished the clerk did not issue citation when suit was filed. It was not issued until March 16, 1961.

No findings or conclusions were filed or requested. Plaintiff’s attorney testified failure to send a copy of the petition to the clerk was inadvertent; that he intended that citation be issued, and did not discover it had not been issued until about March 16; that his failure to make the discovery resulted from his reliance on reminders which [41]*41he received from the insurance company for which he handled a number of such suits, and the fact that he had not received a reminder about this case until the time he discovered citation had not been issued. The petition alleged defendant’s address.

In order to toll the statute of limitation by the filing of a suit there must be not only a bona fide intention that process be issued and served, but diligence as well. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 872; Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 631, syl. 4; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93, 95 ; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16.

The evidence is sufficient to support the implied finding of the trial court, who was also justified in concluding that although the attorney’s failure to have process issued was understandable, in the press of business, he properly relied on a reminder which was not sent to him with diligence. Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

353 S.W.2d 40, 1961 Tex. App. LEXIS 2455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-v-callan-texapp-1961.

Opinion

Related

Cite This Page — Counsel Stack