Western Union Telegraph Co. v. Brooks

GAINES, Associate Justice.

—The appellees brought this action against the appellant to recover damages for negligently failing to deliver a telegraphic message. The plaintiffs having recovered a judgment, a motion for a new trial was made and was overruled. The alleged error of the court in overruling that motion is the sole question presented upon this appeal. The ground of the motion was the absence of counsel. The' motion, which was supported by affidavit, after stating that the defendant had a good defense to the action, and after setting out its nature, proceeded to allege that the defendant “ was prevented from making its defense herein from unavoidable casualty and misfortune. That its attorneys, Stemmons & Field, who were employed by it to defend this action, were unavoidably prevented from being present on the trial thereof; that John M. Stemmons, who would have attended to the defense in said court, was sick in bed and unable to attend to said suit, and is still sick and now absent from the State and in Mexico seeking to be restored to health; and A. H. Field, the other member of said firm, was in attendance necessarily absent in the District Court of Upshur County, and was unaware of the sickness of said John M. Stemmons until too late to reach this court in time for the trial thereof.”

The inference from the allegations of this motion is that the defendant was not represented at the trial, and that the case was tried ex parte. But the judgment recites that the “ cause being called, came the plaintiffs *333 and the defendant by their respective attorneys, and both parties announced ready for trial,” etc.

Viewed in the light of this recital, the motion is manifestly insufficient. The recital shows that the defendant was represented by counsel on the trial of the cause. If it were false it would seem that the proper course would have been for the defendant to have had the entry amended nunc pro tunc, so as to make the minutes speak the truth. At all events it should have been distinctly shown in the motion not only that the defendant was not represented on the trial by Messrs. Stemmons & Field, who seem to have been at least the leading counsel in the case, but also that it was not represented at all. From the state of the record we must assume that the defendant appeared by attorney. Under these circumstances, if the presence of one or the other of these gentlemen was necessary to a proper defense of the case, and they were unavoidably absent, that fact should have been set up in a motion for a continuance. Strippelman v. Clark, 11 Texas, 296 ; Ward v. Cobbs, 14 Texas, 303 .

There are other questions presented upon the face of the motion for a new trial, but it is unnecessary to discuss them. The record shows that the defendant was represented upon the trial of the case, and that no effort was made to have the case continued or postponed on account of the absence of the leading counsel.

We find no error in the judgment, and it is affirmed.

A firmed.

Delivered October 28, 1890.