Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 67
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1384.] FIELD & Co. V. FOWLER. 67
Argument for the appellant.
the claim of defendant would not be resisted by plaintiff, and
advised the appellant to call on the attorneys Qf plaintiff to ascertain
their purpose with reference to the prosecution of the suit;
that he did so call on John T. Flint, one of the attorneys of plaintiff,
and conferred with him in reference thereto; that he was informed
by Flint that it was not then determined what action
they would take in the matter, but that before any action was
taken they would notify appellant of their determination with reference
to the prosecution of the suit; that this promise was made
on the 6th day of December, 1883. That on the morning of the
7th, appellant was notified by message that the case was about to
be called in court; that he immediately went to the courthouse,
and when he reached there, he was informed that judgment had
already been taken by default, etc. That he failed to cause issues to
be presented and an appearance to be made, because he relied upon
these representations; that he was induced by the representations
of plaintiff's attorneys to believe that they were undecided whether
or not they would attempt to subject the property in controversy
to the payment of plaintiff's debt. He further stated that the
defendant had a good, legal and equitable title to the property
seized and that C. P. Field had no interest in it. This motion was
Another motion was filed by appellant on the same day to set
aside the judgment by default as having been prematurely entered,
and at the same time a tender of issues was made and filed in behalf
On the 13th of December appellee filed two separate answers to
the motions,- neither of which were sworn to,- and the answer relating
to the promises of Flint, set out in appellant's motion for a
new trial, was signed alone by Anderson, and was upon "information
and belief," and not sworn to.
On the same date appellee filed a number of special exceptions
calling in question the sufficiency of appellant's motions. The court
sustained the exceptions to one of the motions of appellant, and
overruled the other motion, from which orders this appeal was prosecuted.
Jones & Kendall and A. . Jackson, Jr., for appellant, cited, on
their proposition that it was error to overrule the motion to set aside
the default, Spencer v. Kinnard, 12 Tex., 187.
Anderson & Flint, for appellee.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/89/: accessed August 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .