Alexander v. Hagedorn

• Decision Date: 01 February 1950
• Docket Number: No. A-2271,A-2271
• Citation: 148 Tex. 565,226 S.W.2d 996
• Parties: ALEXANDER et ux. v. HAGEDORN.
• Court: Texas Supreme Court

Page 996

226 S.W.2d 996

148 Tex. 565

ALEXANDER et ux. v. HAGEDORN.

No. A-2271.

Supreme Court of Texas.

Feb. 1, 1950.

Rehearing Denied March 8, 1950.

William Yelderman, Austin, for petitioners.

Richards & Richards, Lockhart, Hart, Brown & Sparks, Austin, J. H. Hart, Austin, for respondent.

BREWSTER, Justice.

This is a proceeding by bill of review brought by William Hagedorn, respondent, against W. C. Alexander et ux., petitioners, to set aside a judgment rendered in their favor against respondent at a former term of court. A trial court judgment for Hagedorn was affirmed by the Court of Civil Appeals. 220 S.W.2d 196.

In the original suit, the Alexanders alleged that while they were riding on a public highway at night in their automobile and while they were meeting another automobile, a mule stepped from behind the latter vehicle and immediately in front of their own; that to avoid striking the mule, Mrs. Alexander was compelled to steer their automobile into a ditch, which action overturned the car causing damage to it and severe injuries to her; that Hagedorn was the owner of the mule and had permitted it to run at large and unattended upon the highway in violation of a local stock law.

Hagedorn was not born 'in this country' and at the time of the trial of his bill of review was 75 years old, but he had lived in Gonzales, Hays and Caldwell Counties for 52 years. He cannot read or write the English language. So, when the citation was served on him in the damage suit, he requested the deputy sheriff to explain its meaning. The officer explained that it meant that the Alexanders were suing Hagedorn for damages. He told Hagedorn what they alleged in support of their demands and that the citation required Hagedorn to appear in district court at Lockhart on September 1, 1947, to answer the suit.

According to the trial judge's findings of fact, Hagedorn went to the district courtroom on September 1 but found nobody there, whereupon he went to the district clerk's office and told the clerk he was there to answer the Alexanders' suit. The clerk told Hagedorn that the district judge was not in Lockhart and that no court would be held that week. Asked by the clerk whether he had an attorney, Hagedorn replied that he did not. He then gave the clerk his address, requesting the clerk to notify him when to return to defend the suit. Hagedorn 'understood that the Clerk would notify him when he should return to Lockhart for the purpose of defending' the suit but 'did not understand that he was required to employ an attorney or to do anything more than he had done in response to the process served on him.' Then Hagedorn went home; he employed no attorney; and, receiving no word from the clerk 'or from any other person' relative to the suit, he did nothing further about it until after April 1, 1948, when he learned that garnishment had been run against his bank account following a judgment rendered against him on December 8, 1947, three months and one week after he had his conversation with the clerk. Then he did employ attorneys and filed this action.

The trial court found that Hagedorn 'had a complete and absolute defense' to the Alexanders' suit in that he did not own the mule and was not responsible for it being on the highway when the Alexanders' car was forced off the road; that the court would not have entered judgment for the Alexanders on December 8, 1947, if he 'had not understood from the testimony given and the statements made to the Court at that time that defendant William Hagedorn admitted that the mule which was on the highway and which was alleged to have caused the accident * * * was his mule and was a mule for the custody of which he was responsible'; that when Hagedorn came to the courtroom on September 1, 1947, he came to inform the court that he did not own, and was not responsible for, the mule at the time of the accident; and that the mule belonged to, and was under the control of, Hagedorn's son, Robert, at the time of the accident, which fact was known to the Alexanders when they filed suit 'and at all times thereafter.'

Petitioners complain that the Court of Civil Appeals erred in holding that these facts showed that Hagedorn had suffered the judgment to be rendered against him 'through fraud, accident or acts of the opposing party, wholly unmixed with any fault or negligence of his own.'

Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, er. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments 'are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted'; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Harding v. W. L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964. As said by the Supreme Court of California, 'Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.' Pico v. Cohn et al., 91 Cal. 129, 25 P. 970, 971, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159.

Although negligence is a question of fact for the trial court, it is a question of law whether, when the facts are so established, they amount to any evidence to sustain that issue. Crawford v. Houston & T. C. Ry. Co., 89 Tex. 89, 33 S.W. 534; San Antonio Brewing Ass'n v. Wolfshohl, Tex.Civ.App., 155 S.W. 644, er. ref.; Houston E. & W. T. R. Co. v. Boone, 105 Tex. 188, 146 S.W. 533. So the question is whether respondent's conversation with the clerk and his understanding of its import, as found by the trial court, tend to show diligence on respondent's part in defending the suit.

'Reliance upon the statements or promises of third persons even though they may occupy some official position or seem to be in a position to have better information than the party himself, does not ordinarily entitle to relief for failing to make a defense.' Freeman, Law of Judgments (5th Ed.), Vol. 3, Sec. 1245, p. 2592.

Under any other rule it would be very difficult if not impossible for a trial court to function in the field of default judgments. For it would mean that before the court could enter a valid judgment against a non-answering defendant, he would have to call in the clerk, the sheriff and perhaps all other courthouse officials and their deputies to ascertain whether any of them had made any extra-official agreement to notify the defendant when his case would be on call, even though the judge, as is true in this case, may have no intimation whatever from any source that any such agreement has been made. Obviously, such a situation would be intolerable. As said by the Appellate Court of Indiana, in a case wherein defense counsel relied on the clerk of the trial court to inform him of the day of trial of his client's case, 'If the arrangement made by the appellant with the clerk is respected, it will become a precedent, and whenever a like arrangement shall be made hereafter, and the clerk does not keep his promise, the courts will be placed under the imperative duty of giving relief. Such arrangements would probably become frequent, because of the disposition of the officers of courts to be courteous and obliging to attorneys.' Western Union Tel. Co. v. Griffin, 1 Ind. App. 46, 27 N.E. 113, 115.

In Elton v. Brettschneider, 33 Ill.App. 355, appellant attacked a default judgment, alleging that he was summoned to the August term, went to the courtroom on the morning of the first Monday in August, but found no court in session and was told by 'various' officers of the court that there would be no court until September 17; that he believed them, and his attorney being out of town he paid no more attention to the suit; that, therefore, he did not know until the term was over that judgment had been taken. The court said, 'Equity can not give relief on such grounds. The appellee is not chargeable with the consequences of the appellant's ignorance or negligence.'

The true rule is stated in 31 Am.Jur., Sec. 745, p. 286. 'The failure of a clerk of court to inform a party or his attorney as to the status of a cause is ordinarily regarded as insufficient ground for the opening or vacating of a judgment resulting therefrom. This rule has even been applied where the clerk failed to answer letters inquiring about the status of the case, and where he failed to keep his promise to keep the party informed. On the other hand, relief has been granted where a judgment was rendered against a party in consequence of some mistake or fault of a clerk of the court, where there was no negligence on the part of the litigant, or where the negligence was excusable. This rule has been applied where a party has in good faith endeavored to ascertain from the clerk of the court the condition of the cause upon the court's calendar, and is honestly misled by information received. Thus, it has been decided to be proper to open a default against a defendant, where his attorney was informed by the clerk that no business would be transacted by the court until after a certain date, and relying upon this statement he did not appear until such date, when he found that his pending demurrer had been overruled.'

This statement recognizes the difference between promises or statements made by the clerk within the scope of his official duties and those made outside of it. For...