
    PORTER v. KRUEGEL.
    (Supreme Court of Texas.
    April 2, 1913.)
    1. Dismissal and Nonsuit (§ 81) — Want of Peosecution — Petition to Set Aside.
    The petition,, in a proceeding to set aside a judgment dismissing a former suit for want of prosecution, must show that the petition in the former suit stated a cause of action; that the dismissal of such suit was not for petitioner’s negligence; that he was reasonably diligent in seeking reinstatement during the term When it was dismissed; that, having duly filed a motion for reinstatement, he was not negligent is fading to have it acted upon at the same term; and must also show that a cause of action exists against defendant.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.]
    2. Attorney and Client (§ 129) — Actions for Negligence or Wrongful Act — Petition.
    A petition, alleging a contract by an attorney to prosecute two suits, performance by the client hy paying the stipulated fee, a breach by the attorney, and a refusal to prosecute an appeal, and also alleging fraud and collusion with the adverse parties on the part of such attorney, stated a cause of action for at least nominal damages, and, treating the allegations of fraud and collusion as facts, to recover the fee paid, and hence was not de-murrable.
    [Ed. Note. — For other cases,' see Attorney and Client, Cent. Dig. §§ 284-291; Dec. Dig. § 129.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Proceeding by Herman Kruegel against R. C. Porter to set aside a judgment. A judgment in favor of defendant was reversed by the Court of Civil Appeals (136 S. W. SOI) and the cause remanded, and defendant brings error.
    Affirmed.
    J. C. Muse, of Dallas, for plaintiff in error. Herman Kruegel, of Dallas, for defendant in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, G. J.

Defendant in error instituted this proceeding in the district court of Dallas county against R. C. Porter, by petition, to set aside a judgment dismissing a former suit by plaintiff, Kruegel, against said Porter, which had been filed in that court, wherein the plaintiff sought to recover from Porter damages for failing to prosecute two suits in the same court, instituted and pending against parties hereafter named, which suit against Porter was set for trial on a certain day of the term of the district court; but plaintiff was not informed of the fact that the case had been set until he saw an announcement in a newspaper that the case had been dismissed for want of prosecution, and on the next day after getting the information plaintiff filed a motion to reinstate that case upon the docket. The motion was called for trial, and plaintiff was ready for a hearing of it,' but Porter asked for a postponement, which the presiding judge granted. Judge Scott, as special judge, was presiding in said court on account of the sickness of Judge Nash, the regular judge of the court, and before the.time set for hearing the motion Judge Scott retired, and Judge Nash adjourned the court and diéd, so that plaintiff could not obtain action upon his motion to reinstate the case at that term.

In order to sustain the proceeding in this case,' the petitioner must show that in his petition (in the suit dismissed) he alleged facts which, if true, would have entitled him to judgment against Porter, and that the dismissal of his original suit was not on account of negligence on his part. It must also appear that he was reasonably diligent in seeking a reinstatement of the case during the term when it was - dismissed, and, having filed a motion in proper time, he must show in this case that he was not negligent in failing to have the motion acted upon at the same term; and there must be alleged in his petition facts which, if true, show a cause of action against Porter.

We are of opinion that plaintiff’s petition, if the allegations be true, was sufficient to show that he was not guilty of negligence that would justify a court in refusing to hear him and give judgment, if he should show himself entitled to relief, against Porter. It is difficult to Condense and state the substance of the petition; we therefore copy as follows: “Wherefore plaintiff sues now at a subsequent term for to set aside the judgment of dismissal, and to reinstate his said case, and for a judgment on its merits; and for cause of action and complaint against defendant, Porter, further pleads as follows, to wit: That defendant is now, and was on December 15, 1900, and a long time before, a practicing attorney at law in the city of Dallas, and that on said day, by a certain agreement then made and entered into in writing between plaintiff and defendant, duly signed in duplicate, it was agreed and understood that defendant, as an attorney at law and counsel for plaintiff, should and would conduct and prosecute to a final termination for plaintiff two certain suits at law theretofore prepared and filed by plaintiff in his own proper person, in behalf of himself and wife, in the Forty-Fourth district court, Dallas county, Texas. Said suits were on the docket of said court numbered and styled, respectively, viz., No. 18,117, Herman Kruegel et ux. v. Ben E. Cabell, Sheriff, et al., and No. 19,937, Herman Kruegel et ux. v. Reinhardt Nitschman et al., and both of said suits as pleaded by plaintiff presented each a good, legal, valid, and meritorious cause of action, and the damages sustained and sued on by plaintiff in each suit were not less, but a great deal more, than $5,000 actual damages and $5,-000 exemplary damages. The record and papers in both cases have since mysteriously disappeared or been made away with in a manner unknown to plaintiff, so they cannot be found and as plaintiff believes, purposely, by concerted action, for a fraudulent purpose. The causes of action for damages in said two suits were, in substance,. based on a willful, malicious and reckless, wrongful and unlawful, invasion of and trespass on plaintiff’s homestead property, and malicious and mischievous, wrongful and unlawful, destruction of plaintiff’s property or improvements thereon, under and by virtue of a pretended writ of possession of an easement, maliciously, wrongfully, and unlawfully sued out under an erroneous, invalid, illegal, void, and dormant judgment rendered in Eourteenth district court in case No. 12,930, Reinhardt Nitschman v. Herman Kruegel et ux.”

It is alleged that plaintiff paid the fee to Porter according to agreement, and he resumes his complaint thus: “And plaintiff now complains that defendant had accepted plaintiff’s said note and money without giving or intending to give value received therefor, and has willfully or negligently, recklessly, fraudulently, wrongfully, and unlawfully committed a breach of contract in these premises, in that he has collusively with plaintiff’s adversaries willfully and treacherously or otherwise wholly failed to prosecute said ease in good faith with proper care to the best of his ordinary skill and ability in the aforesaid Forty-Fourth district court to good effect and success, when he could have done so, and has failed to make use of all the law and principles of law known to him and pointed out to him, and relied on by plaintiff as applicable to and controlling the said cases; and he has wholly failed to carry and prosecute said cases to final termination to the appellate courts of the country as originally intended and agreed by and between plaintiff and defendant in and by aforesaid agreement, when he could and should have done so.' And by reason of which breach of contract, collusion, deception, treachery, and gross negligence or otherwise of defendant’s failure and refusal to urge and apply all the law applicable to said eases in said Forty-Fourth district court, known to him, and by reason of other undue influence and reversible errors of said trial court, said cases were in said Forty-Fourth district court erroneously or otherwise unjustly decided against plaintiff; and by the failure and refusal of said defendant to carry and further prosecute said cases on appeal or writ of error to the appellate courts of the country for revision and correction of the errors committed on trial in said Forty-Fourth district court for final termination as agreed, which would there have been reversed and remanded, and on new trial in the court below said two cases would have been decided in favor of plaintiff, and plaintiff would have recovered judgment for the amount sued for in said two suits.”

The petition- alleges-that the defendants in the suits which Porter was employed to prosecute were solvent, and that by proper prosecution the claim against them could have, been recovered and collected. .

The majority of the Court of Civil Appeals reversed the judgment of the district court and remanded the case. Justice Book-hout dissented, which gives this court jurisdiction.

The proceeding is to set aside the judgment of dismissal at a former term and for a new trial of the case. Bryorly v. Clark, 48 Tex. 345, is authority for the propositions which follow.

The petition alleges distinctly a contract with Porter to prosecute the two suits named, and also alleges a breach of the contract in the fact that he refused to prosecute an appeal, besides allegations of collusion with the defendants and fraud on his part. It alleges the making of a contract for $175 as a fee to Porter for services to be rendered and the payment of the fee to Porter by Kruegel.

The general demurrer admits the • truth of those allegations and, treating them as true, we think the plaintiff would be entitled to nominal damages for breach of the contract, and that, considering as facts the allegation that Porter refused to prosecute the two cases to the Supreme Court, and that he fraudulently combined and confederated with the adversaries of his client, the plaintiff would be entitled to recover the fee paid by him to Porter. The petition .was not subject to general demurrer, and the Court of Civil Appeals properly reversed the judgment and remanded the case to the district court.

It is. unnecessary for this court to pass upon other allegations of fraud, etc.

The judgment of the Coúrt of Civil Appeals is affirmed. It is ordered that plaintiff in error pay all costs of this court and of the Court of Civil Appeals.  