
    Andrew VASSILIADES, Appellant, v. Nick ANAGNOS, Appellee.
    No. 4633.
    Court of Civil Appeals of Texas. Waco.
    May 11, 1967.
    Victor R. Blaine, Houston, for appellant.
    Knight, Prappas, Rowland & Caldwell, Ellis F. Morris, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from a judgment for debt of $2,000 for plaintiff.

Plaintiff Anagnos filed suit in the nature of a bill of review against defendant Vassiliades on September 17, 1965, alleging he had filed suit for debt against defendant in 1961; that on February 5, 1965 the District Judge notified plaintiff’s counsel he was going to dismiss the case for want of prosecution on April 19,1965; that plaintiff, on February 12, 1965, had the case set for trial for April 12, 1965; that on April 6, 1965 defendant’s counsel filed motion to withdraw from the case, which motion was granted on the same date; that plaintiff’s counsel, in order to give defendant time to obtain new counsel, agreed with defendant’s counsel to pass the case at its April 12th setting; that the trial court on April 22, 1965, without notice to plaintiff or plaintiff’s counsel, dismissed the case for want of prosecution; that on August 11, 1965 plaintiff’s counsel requested the cause be set for trial on September 13, 1965; that at the call of the docket on September 13, 1965 plaintiff’s counsel first learned the case had been dismissed. Plaintiff incorporated his original petition pleading the cause of action for debt, and plead for reinstatement of his first case, and “for such further relief as he may show himself entitled to.”

Defendant answered by general denial.

Trial was before the court without a jury, which entered judgment for plaintiff for the debt sued for in the sum of $2,000.

Defendant appeals, contending the trial court erred in rendering judgment for plaintiff because the suit was in the nature of a bill of review, and there is no evidence plaintiff was free of negligence in permitting the entry of order of dismissal of the first case (or in not filing motion for new trial or appealing).

Plaintiff filed this case September 17, 1965, asking that the judgment of dismissal in the first suit be set aside, and further repleading his cause of action for debt. Defendant answered by general denial only. The trial court rendered judgment for plaintiff for debt for $2,000.

While we think the record ample to show plaintiff free of negligence in permitting entry of the order of dismissal; (and not filing motion for rehearing and appealing), it is not necessary to rest our decision on such ground. Plaintiff replead his original cause of action for debt in the instant case; defendant answered by general denial only; and the evidence is ample to sustain the judgment.

The judgment is correct. Defendant’s points and contentions are overruled. Affirmed.  