Alexander v. Hagedorn

• Citation: 220 S.W.2d 196
• Decision Date: 13 April 1949
• Docket Number: No. 9786.,9786.
• Parties: ALEXANDER et ux. v. HAGEDORN.
• Court: Texas Court of Appeals

220 S.W.2d 196

ALEXANDER et ux. v. HAGEDORN.

No. 9786.

Court of Civil Appeals of Texas. Austin.

April 13, 1949.

Rehearing Denied May 4, 1949.

Appeal from District Court, Caldwell County; J. H. Fuchs, Judge.

Suit in the nature of a bill of review by William Hagedorn against W. C. Alexander and wife, to set aside a judgment rendered against plaintiff in an action for damages resulting when defendants' automobile overturned on highway, and to enjoin enforcement of the judgment during pendency of suit. From adverse judgment, defendants appeal.

Judgment affirmed.

Wm. Yelderman, of Austin, for appellants.

Richards & Richards, of Lockhart, Hart, Brown & Sparks, and J. H. Hart, all of Austin, for appellee.

RAYMOND GRAY, Justice.

Appellee, as plaintiff in the trial court, brought this suit, in the nature of a bill of review, to set aside a judgment rendered against him and in favor of appellants in cause No. 10,500, and prayed for an injunction restraining the enforcement of said judgment during the pendency of this suit.

Appellants filed cause No. 10,500 against appellee for damages resulting to them when their automobile overturned on the highway. It was alleged this accident was caused by a mule which was on the highway unattended, in violation of a local option stock law and allegedly owned by appellee. Upon the trial damages were awarded appellants for a total sum of $3,126.84. After the expiration of the term of court at which this judgment was rendered, appellants caused a writ of garnishment to be issued and served on the First Lockhart National Bank. After being advised by the bank that the writ of garnishment had been served, and being advised by said bank to employ an attorney, appellee employed attorneys and instituted this suit.

In his petition for a bill of review appellee alleged he cannot read the English language and that when the officer served citation on him in cause No. 10,500, he requested said officer to, and said officer did, read and explain to him the citation, and stated to appellee that the citation required him to appear in the district court on or before 10 o'clock a. m., September 1, 1947. That appellee and his wife did go to the district courtroom on the morning of September 1, 1947, and found no one there; that he then went to the district clerk's office and made known to the clerk that he had come to the court for the purpose of entering his appearance in cause 10,500; that the clerk advised him there would not be a session of the district court that week and the judge would not be there; that he gave the clerk his postoffice address and said clerk advised him he would let him know when he should come back for the purpose of further answering said cause; that relying on the information given him by the clerk and believing he would be notified before further proceedings were had in the cause, appellee returned to his home in a rural area of Caldwell County and did not hear anything further about cause 10,500 until he learned the bank had been served with a writ of garnishment, issued on the judgment obtained in cause 10,500 on December 8, 1947.

Appellee further alleged the above facts were not made known to the court at the time of the entry of the judgment; that he had acted diligently in responding to the process of the court and in entering his appearance; that he has, and had, a good and sufficient defense to the cause of action alleged against him, in that at the time it was alleged a mule was on the highway unattended, such mule did not belong to him, was not one over which he had any control or of which he had any knowledge, or that had ever been in his possession; that he could and would have established these facts at the trial of cause 10,500 if he had been advised of the date of such trial, and that he has at all times been fully prepared to prove such facts.

Upon the trial the judgment in cause 10,500 was set aside, all effects impounded by the writ of garnishment were released, and judgment rendered that appellants take nothing as against appellee.

The parties agreed that the evidence and proceedings in cause 10,500 should be considered and taken cognizance of by the court in this cause.

The court filed findings of fact, which are supported by the evidence, and, among other things, found:

Appellee cannot read or write the English language; that at the time citation was served on him in cause 10,500, appellee requested the officer serving the process to explain to him its meaning and tell him what to do; that the officer did explain the citation and told appellee it required him to be at the courthouse in Lockhart September 1, 1947; that appellee went to the courthouse and to the district court room on September 1, between 9 and 10 o'clock a. m., and found no one there; that he then went to the district clerk and told said clerk he had come in obedience to the citation served on him by the deputy sheriff and to answer in cause 10,500; that the clerk advised appellee that there would not be any district court held at Lockhart during that week; that appellee gave the clerk his address and requested said clerk to notify him when he should return for the purpose of defending cause 10,500; that the clerk took appellee's address and he understood said clerk would notify him when he should return for the purpose of defending said...