*151On Appellees’ Motion for Rehearing.
At a former day we reversed the judgment of the court below, holding that appellant alleged good grounds for review. In a vigorous motion for rehearing, appellee challenges the correctness of our holding. We recognize the rule, contended for by appellee, that in passing upon the sufficiency of a bill, as against a general demurrer, mere conclusions, as well as allegations inconsistent with the proceedings had in the main case, will be .given no consideration.
Appellant alleged, as reasons why it was not represented at the trial of the main cause, and did not move for a new trial, that it had no notice of the setting of the case for trial, nor did it have notice of the judgment until execution was issued thereon and placed in the hands of the sheriff for collection, too late to move for a new trial; that at the time there existed a well-known custom, observed by attorneys and litigants having business in the courts of Dallas county, requiring, in the circumstances mentioned, that reasonable notice be given a party of the time or date his cause would be called for trial; that this custom was violated by appellee, depriving appellant of the privilege of urging its valid and meritorious defenses to appellee’s suit; that there also existed a custom, well known to attorneys and litigants at the Dallas Bar, to the effect that, on the rendition of judgment against an absent party, under the circumstances alleged, notice of such fact should be given the losing party, to afford him reasonable opportunity to move for a new trial; that this custom was also violated in the instant case, although appellee and his attorney knew appellant did not know that judgment had been rendered against it, nor did appellant receive notice of such fact until confronted with the execution.
• If these facts are to be considered as well pleaded, under a well-established rule, we must accept them as true. However, appel-lee contends that, as a matter of law, the alleged customs could not have existed, in that,. they contravene the provisions of subdivision 18 of article 2092, R. S. 1925, therefore the court below properly ignored all reference to their existence.
We recognize the rule contended for, that a local custom cannot supersede or modify a statute, or unsettle the law. Dewees v. Lockhart, 1 Tex. 535; Sydnor v. Gascoigne, 11 Tex. 449; Mo. Pac. Ry. Co. v. Eagan, 72 Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776. But do these customs have that effect? Subdivision 18 of article 2092, R. S. 1925, reads: “On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of either party, or on the courts [court’s] own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation. Non-contested cases may be tried or disposed of at any time whether set or not, and may be set. at any time for any other time.” Thus it is seen that cases are set for trial, either on request and by agreement of parties, or on motion of a party, or on the court’s own motion, with notice to the parties so as to allow reasonable time for preparation.
We do not believe this statute would be contravened, superseded, or modified by the customs alleged by appellant; in truth, the statute contemplates some kind of notice to the parties as to the setting of all contested cases, either notice obtained where the setting is by agreement, or that presumed where the setting is on motion for that purpose, and when set by the court, notice must be given. Oúr attention has been called to no rule of law that would be contravened by a local custom requiring notice to a party where judgment against him is rendered in his absence. So, whether or not these customs have any existence in fact, on this appeal, we must accept the allegations as to their existence as true. We do not think the recitation in the judgment, that the cause came on for trial “at a regular setting of said cause and in its due order on the court’s assignment,” is inconsistent with the allegation that appellant had no. notice of the setting of the case; in fact, the death of its attorney of record; prior to these happenings, rather forbids the idea that appellant had notice.
In the original opinion, reproducing appellant’s allegations, we said: “Hughes made no effort to prosecute the suit, but, on three occasions, permitted same to be dismissed for want of prosecution; that on November 29, 1932, more than four years after its institution, the cause was dismissed for' want of prosecution, which fact appeared, among other published court proceedings, in the Dallas Morning News of November 30, 1933; was read by petitioner’s manager, and neither knowing nor having notice of anything to the contrary, petitioner was led to believe, and did believe, that the cause had been aban*152doned by plaintiff, and finally disposed of; however, it appears that later, on verbal motion by plaintiff Hughes, the court set aside the order of dismissal and reinstated the cause, without either actual or constructive notice to petitioner.”
Appellee challenges the correctness of all allegations in regard to the dismissal of the cause for want of prosecution and its reinstatement on verbal motion, because the record- of the original cause fails to reveal any such proceeding. This criticism is well taken. The supplemental transcript containing proceedings had in the original cause fails to show that the cause was either dismissed or reinstated; hence all allegations in regard to these matters will be eliminated and given no consideration. However, even with these allegations eliminated, the petition, in our opinion, alleges grounds for review.
After carefully considering appellee’s motion for rehearing, we are unconvinced that error was committed by us; hence the motion is overruled.
Overruled.