Stollenwerck v. State Nat. Bank in Terrell

On Motion for Rehearing.

In the original opinion we said, “The record justifies the inference that, after the bank sued appellant, the ease pended upon the docket without any intention or purpose, on the- part of plaintiff, to press for final trial, until after appellant’s application for discharge was disposed of.” 1 We thought this a legitimate inference from the allegations of plaintiff’s petition. However, in appellee’s motion for rehearing it is shown that the suit against appellant was filed October 31, 1930; that citation was served November 3d, but too late for the November term; that the case went over to the succeeding term which convened February 16, 1931; and that default judgment was promptly taken next day; so the criticism is made that we are inaccurate in saying that appellee permitted the case to pend upon the docket, without action, until after appellant’s application for discharge in bankruptcy was disposed of. This criticism, based upon the facts stated, is justified, but the dates given, upon which the same is based, are not found in appellee’s petition, but are taken from. the citation, which, while in, is not properly a part of, the record; hence was not considered by us. However, we do not deem the matter objected to of any materiality, and the language referred to is withdrawn from the opinion, but without affecting the result. Investing appellant’s allegations with all reasonable in-tendments, we think a case is made showing that, without fault or negligence he was prevented by the continued serious illness of his attorney from urging a perfectly valid and meritorious defense to plaintiff’s suit. Ap-pellee’s motion for rehearing is overruled. .

Overruled.

Withdrawn from original opinion before publication.