Will Bailey, et ux v. Exxon Corporation, et al--Appeal from 269th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-92-00191-CV

Case Date: 12/30/1992

Plaintiff: Will Bailey, et ux

Defendant: Exxon Corporation, et al--Appeal from 269th District Court of Harris County

Preview:Will Bailey, et ux v. Exxon Corporation, et al--Appeal from 269th District Court of Harris County
IN THE TENTH COURT OF APPEALS

No. 10-92-191-CV

WILL BAILEY, ET UX., Appellants v.

EXXON CORPORATION, ET AL., Appellees

From the 269th District Court Harris County, Texas Trial Court # 87-45293

OPINION

Will and Matilda Bailey appeal a take-nothing judgment granted in favor of Exxon Corporation and George Smith. The Baileys filed this personal injury suit on September 30, 1987, alleging that they were injured by the negligent actions of Exxon and Smith. When the case was called on December 4, 1991, the Baileys were unable to proceed to trial, and the court rendered judgment in favor of Exxon and Smith. In point one the Baileys contend that the trial court abused its discretion in proceeding to trial in the absence of Smith because he was a "necessary" and "indispensable" party. The Baileys' argument under Rule 39 of the Texas Rules of Civil Procedure is, however, without merit. Rule 39(b) provides: If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.

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(Emphasis added). // First we note that Smith was eventually made a party to the suit by service pursuant to Rule 106 of the Texas Rules of Civil Procedure. // The fact that Smith never answered may have subjected him to a default judgment, but he cannot thereby be considered a person who "cannot be made a party." Second, although the Baileys complain that the trial court abused its discretion in proceeding to trial without George, the only available alternative contemplated by Rule 39 was a dismissal of the action. // Because this case simply does not involve the failure to join an indispensable party, we overrule point of error one. In point two the Baileys contend that the trial court abused its discretion in denying their motion for continuance. Granting or denying a motion for a continuance rests within the sound discretion of the trial judge. // As no statement of facts from the original trial proceeding has been filed with this court and the transcript does not show that the motion was presented to the court or that it ruled thereon, we must presume that there is evidence to support the trial court's action in overruling the motion. // We overrule point of error two. We affirm the judgment. BOBBY L. CUMMINGS Justice

Before Justice Cummings and Justice Vance (Chief Justice Thomas not participating) Affirmed Opinion delivered and filed December 30, 1992 Do not publish

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