On Motion for Rehearing.
We do not believe that the conclusions reached by us on original hearing are in conflict with the numerous decisions cited by appellants, with chief stress on Wear v. McCallum, 119 Tex. 473, 33 S.W.(2d) 723, and Maytag Southwestern Co. v. Thornton, 20 S.W.(2d) 383, Court of Civil Appeals (writ of error refused). And, in addition to the. numerous decisions cited in support of the rule announced in 25 Tex.Jur. § 194, p. 597, quoted in our original opinion, we believe the following decisions are particularly in point: Morris v. National Cash Register Co., 44 S.W.(2d) 433, by the Dallas Court of Civil Appeals, opinion by Justice Looney (writ dismissed), and other decisions there cited; Dallas Development Co. v. Reagan, 25 S.W.(2d) 240, by the same court, and decisions there cited; Hickman v. Swain (Tex.Civ.App.) 210 S.W. 548, and decisions cited.
Nor are we able to concur in the contention that testimony introduced on trial of the case, showing that counsel for plaintiffs in the former- suit mailed to counsel for defendants in that suit a letter stating that the case would be called for trial on the day the judgment was rendered, and that the letter was never returned to the writer, was conclusive proof of its receipt, notwithstanding the specific denial of its receipt by the counsel to whom it was addressed.
The motion for rehearing is overruled.