Hebert v. Shrake

ON MOTION FOR REHEARING

In appellant’s motion for rehearing she points out that she stated in her original brief that “On Friday, June 9, 1972, before the announcement of the docket, your petitioner timely filed with the court a ‘motion to strike’ . . .’’In our original opinion we noted that the transcript did not show the time of filing of this motion. The transcript does reflect that the motion was filed on June 9, 1972, and that it was overruled on the same day. Appellee has not controverted appellant’s statement that the motion was timely filed before the announcement of the docket. We conclude that this is a proper case for the application of Rule 419, T.R.C.P., and accept as true appellant’s statement. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.—1944, err. ref.) ; American Sec. Life Ins. Co. v. M. D. Anderson Hospital and Tumor Institute, 408 S.W.2d 155 (Tex.Civ.App.1966, err. dism’d).

For the reasons stated in our original opinion the court erred in overruling the motion to strike the setting. Since the case should have been removed- from the trial docket, the court erred in dismissing the case for want of prosecution. State v. Perkins, 143 Tex. 386, 185 S.W.2d 975 (1945).

The motion for rehearing is granted.

Reversed and remanded.