Summary of Opinion: CLARK v. BROWN et al, No. 12172 (Ct. of Civ. App. of Texas, San Antonio, Nov. 15, 1950)

Factual and Procedural Background

This action was brought by Vird Clark against Johnnie Webb Smith Brown (described in the opinion as "her husband"), Richard Brown, and her daughter, Robbie Mae Hardeman. Clark sought recovery on a note or contract in the amount of $330.00 and sought the title and possession of certain personal property used in connection with a cafe business at 102 Vargas Street, San Antonio, Texas.

The case was tried to the court without a jury. The trial court entered judgment in favor of plaintiff (Clark) for $330.00 but denied recovery of the personal property. Clark appealed from the denial of recovery of the property and from other aspects of the judgment, prosecuting this appeal.

During the trial Clark's only witness, B. J. Thomas, had been sworn and placed under the rule. Clark later asserted that Thomas was threatened by Johnnie Webb Smith Brown and Robbie Mae Hardeman (allegedly told that if he testified for Clark "she, Johnnie Brown, would cut his throat" and that otherwise Richard Brown would do so), whereupon Thomas left the courthouse and did not return until several days later. Clark contends these events entitled him to a new trial; the trial court denied the motion for a new trial.

Legal Issues Presented

1. Whether alleged threats against a party's witness, resulting in the witness's departure from the courthouse, entitled the appellant to a new trial.
2. Whether an appellant's failure during the trial to notify the court of a witness's unauthorized absence and to request remedies (attachment for arrest of the witness, postponement, or continuance) precludes raising the issue for the first time on appeal.
3. Whether a movant for new trial must show, by motion, affidavits, or other evidence, what testimony the absent witness would have given so the court can assess the materiality of that testimony.

Arguments of the Parties

Appellant's Arguments

• Appellant asserted that the only witness (B. J. Thomas), after being sworn and placed under the rule, was threatened by defendants Johnnie Webb Smith Brown and Robbie Mae Hardeman with violence if he testified for Clark, and that threats were made that Richard Brown would carry out the violence if the women did not.
• Appellant argued that these threats caused the witness to leave the courthouse during the trial and that the absence of the witness deprived appellant of material testimony, entitling him to a new trial.
• Appellant also pointed out that the witness was not seen again by appellant or his attorney until several days after the trial concluded; they only learned later why the witness had left.

The opinion does not contain a detailed account of appellees' legal arguments in response to the new-trial motion or on appeal.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analyzed the appellant's claim along two principal lines:

1. Procedural duty to notify the trial court and seek immediate relief: The court emphasized that when appellant discovered during the trial that the witness Thomas had absented himself from the courthouse without permission, appellant had a duty to promptly notify the trial court of that fact. If appellant regarded the witness's testimony as material, he should have requested that the court issue an attachment for the arrest of the witness and asked the court to postpone the hearing or continue the case until the witness could be located. The court explained that the appellant could not knowingly proceed with the trial while keeping the witness's absence secret and then raise the issue for the first time after an adverse judgment.
2. Requirement to show the expected testimony and its materiality: The court further observed that appellant failed to show in his motion for a new trial, by affidavits attached to it, or by any other evidence, what facts he expected to establish through witness Thomas. The court stated that both the trial court and the appellate court have a right to know the substance of the testimony the absent witness would have given so that the materiality of the testimony could be evaluated.

Applying these principles to the record, the court concluded that the procedural failure to promptly notify the trial court and to pursue immediate remedies, together with the absence of any showing of the expected testimony or its materiality, sufficed to deny the motion for a new trial. The opinion treats these procedural and evidentiary shortcomings as dispositive of appellant's claim.

Holding and Implications

JUDGMENT AFFIRMED.

Holding: The court affirmed the trial court's judgment and held that the appellant was not entitled to a new trial based on the alleged threats and the witness's subsequent absence because (1) appellant failed to notify the trial court during the trial and seek appropriate remedies (attachment, postponement, or continuance), and (2) appellant failed to show by motion, affidavits, or other evidence what the absent witness would have testified to and thus failed to establish the materiality of the testimony.

Implications: The direct effect of this decision is that the trial court's judgment (award of $330.00 to Clark and denial of recovery of the personal property) is affirmed and the trial court properly overruled the motion for a new trial. The opinion does not announce or rely upon any new legal precedent beyond applying settled procedural rules about a party's duty to alert the court to an absent witness and the necessity of showing expected testimony and its materiality when seeking a new trial.