#### HUBBARD et al. v. CANNON et al.

No. 3382.

Court of Civil Appeals of Texas. Beaumont.

Feb. 9, 1939.

Rehearing Denied Feb. 15, 1939.

W. H. Hanson, of Houston, for plaintiffs in error.

Sanders & McLeroy, Davis, Avery & Wallace, and Lane & Anderson, all of Center, for defendants in error.

O’QUINN, Justice.

Plaintiffs in error sued defendants in error in trespass to try title to 320 acres of land in Shelby County, Texas.

Service was had on the numerous defendants (14 of them) and they filed answers.

On November 9, 1936, the motion of defendants S. H. Sanders and E. J. McLeroy that plaintiffs be required to give bond for costs of suit was heard, and the Court, in his order requiring such bond be given, recited: “And it appearing to the court that plaintiff had due notice of such motion, that he has not given security for costs, and that such is well taken, it is accordingly ordered, that said plaintiffs be, and they are hereby, ruled to give security for costs herein as required by law.” This order was duly entered upon the minutes of the court.

On August 2, 1937, at a succeeding term of the court, plaintiffs not having complied with such order, their suit was dismissed for want of compliance with the order of the court.

On August 3, 1937, plaintiffs filed a formal motion to reinstate the cause on the docket for trial. August 27, 1937,. they filed their amended motion to reinstate. On said date, August 27, 1937, the motion to reinstate came on to be heard, and the court refused same, the judgment reciting:

“This day came on to be considered in the above entitled and numbered cause the motion of plaintiffs to set aside the order entered herein on August 2nd, 1937, dismissing the same for failure to comply with the rule for costs heretofore duly entered herein on November 9, 1936, in Volume 13, page 4S2, of the Civil Minutes of this court:

“And the court having fully considered the same and hearing the pleadings, evidence and argument of counsel thereon, is of the opinion that said motion should be, and the same is, hereby in all things overruled, to which plaintiffs excepted and gave notice of appeal to the Ninth Court of Civil Appeals at Beaumont, Texas.”

There is wide difference between counsel as to what took place in the matter. The transcript is somewhat meager. The Clerk certifies that it was prepared and contained “only the proceedings ordered by W. H. Hanson, Attorney for Plaintiffs”. There is no statement of the facts adduced on the hearing of the motion, although the court, in his order, recites “and the court having fully considered the same and hearing the pleadings, evidence and argument of counsel, thereon, is of the opinion that said motion should be, and the same is hereby in all things overruled.” In the absence of a statement of the facts adduced on the hearing, the judgment reciting that evidence was heard we must presume that such was the case, and that same was considered by the court, and that the evidence sufficiently supported the court’s order refusing the motion to reinstate, and that no good excuse was shown for failing to comply with the order of the court requiring plaintiffs to secure the costs.

The judgment is affirmed.