W. R. Swinney on April 15, 1921, instituted this suit against the Texas Northern Oil Company, a corporation, R. G. Sturn, and the Fidelity Oil Company, a corporation of New Jersey. The original petition filed on the day stated is not in the transcript, and we have no means of knowing the particular grounds of action therein stated, but later, to wit, on June 3, 1921, the plaintiff filed his first amended original petition declaring against the defendants already named, and further alleged that numerous other parties, naming them, claimed some interest in the cause of action and sought to have them made parties. In this first amended original petition it was alleged in general terms that the "defendants became indebted to plaintiff in the sum of $556.36 as follows: To one month's salary for labor $200, and for money advanced to defendants by plaintiff at their special instance and request in the sum of $336.30." It was alleged that said labor was performed in the drilling of a certain oil and gas well and the money advanced for labor and material used in the drilling of the well, described as the W. A. Andrews well No. 1, located upon a described 50 acres out of survey 2075. Plaintiff further declared upon a labor's lien averring that it had been duly made out and filed for record. On August 31, 1921, the Fidelity Oil Company filed an answer containing a general demurrer and a general denial to plaintiff's petition and further specifically denied that "it ever employed or authorized the employment of the plaintiff to perform the work and labor set out" in his petition and denied that the plaintiff "ever performed any work or labor for this defendant," and denied that it was indebted as alleged. It further specially answered that it had a contract with one D. A. Hoover whereby it transferred to said Hoover a one-half interest in the lease described in the plaintiff's petition and on which the said Hoover was to drill free of any cost to this defendant an oil well and deliver to said defendant free and clear of any incumbrance seven-sixteenths of all the oil recovered therefrom; that the said Hoover and his *Page 138 successors in interests are primarily liable and responsible to plaintiff for said claim, and that the seven-sixteenth interest transferred to Hoover by the defendant is primarily liable for the payment of said claim; and that this defendant was only secondarily liable after plaintiff's remedies have been exhausted against the said Hoover and his successors.
In this condition of the pleadings, so far as disclosed by the record, it appears that in December following by agreement of the parties the case was set down for trial for January 23, 1922. Prior to the latter date, however, to wit, on January 19, 1922, W. R. Swinney, the plaintiff, filed his second amended original petition, in which he alleged substantially as before, and for the first time further that:
"By virtue of a certain contract by and between Texas Northern Oil Company and Fidelity Oil Company of New Jersey, and plaintiff, said Fidelity Oil Company of New Jersey contracted and agreed to pay all the sum or sums of money that this plaintiff had advanced and furnished said lease and said labor performed for and in consideration of the Texas Northern, transferring their interest in said lease and said production to Fidelity Oil Company of New Jersey, contracted and agreed to pay said amount due this plaintiff, as consideration of this transfer, and this plaintiff says that said contract was made and that Texas Northern Oil Company contracted and transferred their interest to the Fidelity Oil Company of New Jersey for and in consideration of the Fidelity Oil Company of New Jersey, paying this plaintiff's claim and other claims."
A number of other defendants and interveners filed pleadings in September, but none of them declare upon the agreement charged in the paragraph of the plaintiff's petition quoted above.
The record further discloses that on January 23, 1922, the day upon which the trial had theretofore been set, the court was engaged in the trial of another case, and this case was postponed until the following day, January 24th. On that day, after an announcement of ready for trial and after the introduction of some of the testimony, counsel for appellant stated that he had just discovered that the plaintiff and certain other interveners had on the 19th day of January, or less than five days before the day set for the trial of the cause, filed amended pleadings in which they set up new and different causes of action against the Fidelity Oil Company of New Jersey, claiming that no notice of such filing had been given to the defendant, and said counsel then made an oral application for continuance on the ground that he and the said defendant had been surprised by the filing of such amended pleadings without notice; that the defendant and its said counsel had no opportunity to meet the same by evidence and requested the court for permission to withdraw his announcement of ready for trial and to postpone or continue the cause for a sufficient time to prepare and procure evidence to rebut the new cause of action, whereupon, as is to be inferred from the record, the court postponed the case until the following morning, January 25th, in order that the parties might review the numerous pleadings and formulate the issues to be determined. It further appears that on the morning of the 25th numerous other defendants and interveners filed amended pleadings setting up the alleged agreement with the appellant Fidelity Oil Company, whereupon counsel for appellant, the Fidelity Oil Company, renewed his application for a continuance or a postponement of the cause of action, making first an oral statement and thereafter reduced it to writing. In substance, it appears from the oral statement and the written application that the sole counsel for the appellant company was a nonresident; that no notice had been given to him or to the company represented by him of the filing of the several pleadings in which the cause of action embodied in the quotation we have made from the plaintiff's petition was set up; that the agreement so set up, if made at all, was made in Little Rock, Arkansas, between J. B. Harris, president of the Texas Northern Oil Company, which had become the owner of the seven-sixteenth interest acquired by D. A. Hoover upon a fifty-fifty contract, and George K. Large, president, and E. P. Allen, vice president, respectively, of the Fidelity Oil Company of New Jersey; that the latter parties were both nonresidents, and that they and each of them would testify that no such agreement as alleged by the plaintiff had ever been made.
The court overruled the application and proceeded with the trial without a jury, which resulted in a judgment in favor of the plaintiff Swinney and in favor of the numerous interveners against the appellant company and others, to all of which appellant company duly excepted and prosecutes this appeal.
The only assignment of error that we find it necessary to specially discuss is the one complaining of the action of the court in overruling appellant's application for a continuance. No complaint of the form or substance of the application was made below or now urged except that it was then and now insisted, in effect, that inasmuch as the appellant company had announced ready for trial the question of continuance vel non was placed in the discretion of the trial court which should not now be disturbed, but we are of the opinion that the court erred in his ruling. The statement of the sole counsel for appellant, in view of the numerous pleadings, original and amended, filed by the numerous parties, seems to show that the failure to discover the new cause of action. *Page 139 for the first time presented but five days before the trial, was reasonably excusable, and it is evident that in view of the nonresidence of the officers of the appellant company, with whom it appears the agreement relied on was made, the evidence denying such agreement was not available and could not he obtained at once, or at any time during the term of court. Indeed, had counsel for appellant been served with notice of the plaintiff's petition setting up such new cause of action at the time the petition was filed, depositions of the parties could not have been obtained for the trial upon the day upon which the trial had been set. The transcript further shows that attached to appellant's motion for a new trial is the affidavit of the vice president Allen, wherein he very specifically and fully denies that the alleged agreement was ever made at Little Rock, Ark., or other place, and specifically and fully denies that he or Large at any time either at Little Rock or any other place ever agreed, either for himself or the appellant company, to pay the debts of the plaintiff or any one of the interveners, and denied that such parties had been employed by him or by his company.
We think it hardly necessary to cite authorities in support of the proposition that, while the matter of granting a continuance is largely within the discretion of the trial court, such discretion is reviewable, and we are of the opinion that under the circumstances presented by the record the court erred in overruling appellant's application for a continuance, or at least erred, as is insisted, in overruling appellant's motion for a new trial, based, among other things, upon the action of the court in overruling the motion for continuance. The record is very voluminous and somewhat confusing in the intricate interlocking of numerous issues, but it seems to indicate that the principal, if not the only, ground upon which the plaintiff and numerous interveners were permitted to recover a judgment against the appellant company is that the special contract alleged in plaintiff's amended petition as heretofore quoted had in fact been made and that if the evidence indicated in the affidavit of Mr. Allen, the vice president of appellant company, was presented to a jury and by such a jury credited upon another trial, it would be a complete answer to the case against appellant, except in so far as the plaintiff and interveners may be able, if at all, to establish their several labor and materialman's liens against the leasehold interest which the evidence shows is now in fact wholly owned by the defendant company. It is accordingly ordered that for the error of the court first discussed, and in the condition of the record, we conclude that the judgment should be reversed and the cause remanded as to all parties and all issues, and it will be so ordered. See Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548; Thompson v. Kelley, 100 Tex. 536,101 S.W. 1074; Ferguson v. Dickinson (Tex.Civ.App.) 138 S.W. 221; S.W. Tel. Tel. Co. v. Long (Tex.Civ.App.) 183 S.W. 421.
BUCK, J., not sitting.