Lee v. Zundelowitz , 1922 Tex. App. LEXIS 997 ( 1922 )

BOYCE, J.

The appellee brought this suit against appellant to recover rentals alleged to be due under lease contracts between plaintiff and defendant, whereby the plaintiff leased certain property to the defendant for the term of one year, with rentals payable monthly in advance. The defendant answered by general demurrer and general denial. The trial was begun without the defendant or his counsel being present. During its progress defendant’s counsel appeared, and asked for a postponement of the trial, which was denied. Whereupon said counsel retired, and the case proceeded without his presence, and judgment was rendered for the plaintiff. The complaint on appeal is to the action of the court in refusing to postpone the trial and in overruling thq appellant’s motion for new trial, based on the same ground.

The motion for new trial alleges the following facts: That the cause, prior to February 14, 1921, was pending in the Eighty-Ninth district court of Wichita county, and on said date was transferred, at plaintiff’s request, without defendant’s knowledge, to the Seventy-Eighth district court of said county, for trial. Defendant’s counsel was notified of such action, and consented to a setting of the case for trial for Thursday, February 17th, stating at the time, however, “That he would be agreeable to trying the case, provided only it could be tried at the time the same was set, to wit, Thursday, February 17th, but not otherwise, because the court and plaintiff’s counsel were then and there in open court, advised by the defendant’s counsel that defendant was in Los Angeles, Cal., and could not reach here, and 'the defendant’s ’counsel was engaged for Tuesday and Wednesday, the 15th and 16th, in a trial in this court, in cause No. 2832, * * * and was engaged for Friday, the 18th, and Saturday, the 19th, in a trial in the Eighty-Ninth district court, in cause No. 7937, * * * and, while it would be agreeable to try the case for Thursday, the 17th, the defendant’s counsel could not appear in the case at any other day during that week”; that said attorney was not engaged, and could have tried said cause on Thursday, but it was not reached then, but was called- for trial on Friday morning, the 18th; that on such morning, prior to tlie convening of court, defendant’s counsel informed the plaintiff’s counsel of the fact that he would be engaged in the Eighty-Ninth district court, and could not try the case until the following week; that plaintiff’s counsel replied that he would inform the court of the facts, and endeavor .to have the case passed; that on said Erida.y morning the defendant’s counsel was engaged in the trial of a case in the Eighty-Ninth district court, which case had been set for trial for said date, at a time prior to the setting of this case in the Seventy-Eighth district court, and from which he could not be excused ; that at about 9:30' a. m. defendant’s counsel was informed that the Seventy-Eighth district court was proceeding to try this case, whereupon he was excused by the Eighty-Ninth district court for 15 minutes, during which time he appeared in the Seventy-Eighth district court and dictated a motion for postponement, setting forth the foregoing facts, and which motion the court overruled.

A bill of exceptions to the overruling of said motion shows that the motion contained substantially the allegations above stated as being in the motion for new trial. This motion for postponement, however, did not state that the defendant had a meritorious defense, or indicate in any way. the nature of his defense, though it was stated-that the application was not being made for delay, but that justice might be done. The judge qualified the bill by stating that the appearance in the 'court and motion for postponement were made 36 minutes after the jury to try the case had been impaneled, and while the trial was in progress. The motion for new trial further sets out that after the overruling of said motion for postponement the defendant’s counsel retired to the Eightjr-Ninth district court, and this cause proceeded without the presence of the defendant or his counsel. It contains this allegation as to the defendant’s grounds of defense:

“This defendant shows to the court that he has a valid defense of cause of action of the plaintiff herein in this case, because A. Zundelo-witz, at the time of filing this suit, claiming an indebtedness of $1,050, was„in fact indebted tó this defendant for more than said sum, because one of the buildings leased to this defendant had become damaged, and was unfit for use, the ceiling having fallen in, and the plaintiff had agreed to repair the same, and credit this defendant with the amount then due, and the plaintiff at that time served writ of garnishment upon A. O. Page & Co. and other tenants to which this defendant had subleased said building, and had notified all subtenants of this defendant not to pay the defendant any additional rent, and had personally collected from all of the defendant’s subtenant rents due, and this defendant had never collected any rents from the time said suit was first filed, and therefore the amended petition of plaintiff, alleging an indebtedness of about $5,000, was fraudulent,' and was untrue; * * * that, had this defendant been permitted to appear in person or by attorney, it would have developed on said trial from cross-examination of the plaintiff that the defendant was not indebted to plaintiff in any sum, and that same could have been shown by other witnesses as well, and in this connection the defendant asks the court to consider as a court the evidence in this case, the original petition of the plaintiff as well as . the amended petition, and the several writs of garnishment issued at the time the original petition was filed against * * * the subtenants of this defendant.”

The motion for new trial is sworn to by defendant’s counsel, it being stated that—

“As to the defense of the defendant, Eouis Lee, to' plaintiff’s cause of action, the affiant is informed and verily believes the same to be true.”

[1-3] The motions for postponement and for new trial belong to that class of proceedings that are said to be addressed to the discretion of the trial court, not an absolute discretion, but one subject to review on appeal in case of abuse. Alexander v. Smith, 20 Tex. Civ. App. 304, 49 S. W. 916; Gillaspie v. City of Huntsville (Tex. Civ. App.) 151 S. W. 1114. A defendant who has had his ease tried without'being present, and without representation, is ordinarily required, in order to obtain a reopening of the case, to show: Eirst, that the failure to present his defense at the trial was not due to his negligence; second, that he has a meritorious defense. In satisfying this second condition, he should set out his defense in such detail as that the court may judge of its validity. He is not required to try the case on motion for new trial to determine whether he has a meritorious defense, but at least such a state of facts should be shown as it would appear from the face thereof that he was deprived of making a defense that he was entitled to make, and would have made, and that injustice has resulted by reason of the case having proceeded without the presentation of such defense. Holliday v. Holliday, 72 Tex. 581, 10 S. W. 690; Montgomery v. Carlton, 56 Tex. 431; Drummond v. Lewis (Tex. Civ. App.) 157 S. W. 267; Gillaspie v. City of Huntsville, supra; Western Lumber Co. v. C., R. I. & G. Ry. Co. (Tex. Civ. App.) 180 S. W. 646 (24).

[4] We think it is sufficiently shown in the motion for new trial that there was no negligence on the part of the defendant or his counsel in not being present at the trial, and there presenting whatever defense might have been presented under the circumstances. But, if counsel had been present, he.could not, under the pleading, have introduced evidence of the defense set out in the motion for new trial. The suit was on written lease con tracts. The term of the leases was for one year, but the rentals were payable monthly, in advance. The suit was filed September 1, 1920. Appellant filed bis answer on October 8, 1920. Tbis answer consists of a general exception and general denial. Tbe plaintiff filed amendments on November 29, 1920, and January 21, 1921, the purpose of these amendments being to include a claim for recovery of additional installments of rentals becoming due in tbe interim of the filing of tbe different pleadings. Although tbe case was set for trial on February 17tb, and defendant’s counsel alleges that be was ready to try the case then, there was no amendment or request for amendment of defendant’s pleading. Special pleading, as we have said, would have been required to authorize the introduction of evidence of the facts set out in the motion for new trial as grounds of defense. When counsel appeared in court and asked for a postponement he did not state to the court that he had a meritorious defense and made no reference to the special defenses set up in the motion for new trial. As the matter then appeared to the trial court he could have reasonably concluded that the defendant had no real defense to the plaintiff’s cause of action. The motion for new trial asks the court to take into consideration the evidence that was introduced upon the trial of the case. If this evidence be true, it shows that the defense set up in the motion for new trial is without merit. When the motion for new trial was filed, setting up for the first time these matters of defense, the trial court may have concluded that, if there was any merit in the defense, the defendant was negligent in failing to plead and be prepared to present such defense at the proper time. Negligence in such matters has been held to be sufficient to justify a refusal to set aside the judgment. Western Lumber Co. v. C., R. I. & G. Ry. Co. (Tex. Civ. App.) 180 S. W. 646, and authorities. Under the circumstances, we are not prepared to say that there was such an abuse of his discretion on the part of the trial judge as that we should set aside his action in the matter.

The judgment, therefore, will be affirmed.

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