Trevino v. Central Freight Lines, Inc.

613 S.W.2d 356 (1981)

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Nature of the Case

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Facts

P sued D. P alleged that it sold to D certain merchandise and accepted from D's agent, Billy Brooks, a check in the sum of $ 989.50. The check was not honored, and repeated demands upon D for payment for the merchandise have been refused. P sued for the checksum and attorney fees. D answered with a general denial. P then served a request for admissions upon D's attorney 'pursuant to Rule 169.' D did not respond to P's request for admissions. Eventually, judgment by default was rendered in favor of P against D for $ 939.50 plus $450.00 attorney's fees. D filed a motion for new trial on the ground that he had not received notice of the May 6th setting. On June 3, 1980, the motion was granted, and the default judgment was set aside. D filed his first amended original answer. D stated that the acts would have been done on behalf of Killeen Surplus, Inc., and not on behalf of d individually'; that D did not, either orally or in writing, authorize the purchase of merchandise upon which this suit is based; and that he did not authorize anyone to make the purchase for him or Killeen Surplus, Inc. The case was called for trial on June 23, 1980. Immediately prior to the trial, D filed a motion for extension of time for filing answers to P's request for admissions. D had furnished his prior attorney handwritten answers to the requested admissions; that he relied upon the attorney to answer the request; that he 'did not know until now' the request was not answered. The court denied the motion and adjudged that all eighteen matters of which admissions were requested by P were 'deemed admitted.' D appealed.