Not overruled or negatively treated on appealinfoCoverage
Court of Civil Appeals of Texas, San AntonioFeb 29, 1928
4 S.W.2d 218 (Tex. Civ. App. 1928)

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No. 7944.

February 29, 1928.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by Jean Cohn Wakefield and others against C. L. Burchers and others. From an order dismissing the cause, plaintiffs appeal. Appeal dismissed.

W. M. Groce, of San Antonio, for appellants.

Kleberg North, of Corpus Christi, for appellees.

In this cause appellants have filed no briefs, and it therefore becomes the duty of this court to dismiss the appeal, unless it appears from the record that fundamental error was committed in the disposition of the cause in the court below. It appears that court sustained a general demurrer to appellants' petition, and, upon appellants' refusal to amend, dismissed the cause. The appeal is from the order of dismissal.

The action of the court in sustaining the general demurrer was, of course, fundamental in nature, requiring that it be considered by this court, even in the absence of assignment of error or briefs.

It appears from appellants' petition that in July, 1922, appellees filed a suit against appellants; that this suit remained on the docket until in March, 1926, when judgment was rendered in favor of appellees and against appellants. Neither appellants nor any counsel representing them were present at the trial, which proceeded without them. Appellants prosecuted no appeal or writ of error from that judgment, although they filed a motion for new trial a few days after it was rendered, but after the court had adjourned for the term. Later in the year appellants filed a suit in the same court to set aside the judgment complained of, but failed to press that suit, and it was subsequently dismissed for want of prosecution. Later on appellants filed this, the second suit to set aside the former judgment, and declare the same to be void, and for injunction, and it was the petition in the second suit against which the general demurrer was sustained, and of which action complaint is made in this appeal. We conclude that the facts set out in the stricken petition disclose such a lack of diligence as to cut off appellants from any right of recourse to a court of equity, and that the trial court did not err in sustaining the general demurrer.

The appeal is accordingly dismissed.

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