Banks v. Crawford
| Citation | 330 S.W.2d 243 |
| Decision Date | 03 December 1959 |
| Docket Number | No. 13417,13417 |
| Parties | Louis BANKS et al., Appellants, v. Lorene Stockman CRAWFORD et al., Appellees. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, Clyde Gordon, Jr., Houston, for appellants.
Jerome Pope, Odessa, James Turner, Mabry & Donalson, Houston, for appellees.
This is an appeal from a judgment in a bill of review proceeding refusing to set aside a default judgment taken by Lorene Stockman Crawford against appellant, Louis Banks, on June 30, 1958. The case was tried to the court without the intervention of a jury. The court made its findings of fact and conclusions of law.
Appellants assert that the court erred (1) in finding that no answer was filed in the original suit in which the default judgment was taken, on answer date June 30, 1958, by 10 o'clock a. m., (2) in finding that appellees' attorney had no knowledge, actual or constructive, that an answer had been filed prior to entry of judgment, and (3) in concluding that the evidence was insufficient to sustain a finding of extrinsic fraud whereupon relief sought by appellants could be granted.
There is no assignment that the findings complained of are against the great weight and preponderance of the evidence. The question is, therefore, whether there is any evidence justifying the court's findings and conclusion of law.
Mrs. Brown, Deputy District Clerk, testified that it was her duty to open the mailreceived in the office of the District Clerk and distribute it to the various departments and that it required approximately one hour to sort the mail; that appellant's answer shows that it was filed June 30 at 11:10 a. m., 1958; that the first mail usually reached the District Clerk's office between a quarter of nine and 9:30; that she couldn't say the answer had been received before 9:30; that the second mail delivery was between 11:30 and 12:00; that she could not testify that the answer didn't come in the second delivery; that she couldn't swear whether the answer came into the District Clerk's office before 10:00 o'clock or after 10:00 o'clock. To a question asked by the court, she answered that she could not testify as to whether at any time during the summer the second morning delivery of mail arrived as early as 11:10.
Appellee's attorney, who took the default judgment, testified that he didn't remember the exact time the default judgment was taken but it was some good little bit after 10:00 o'clock, and that he would say it was in the vicinity of 10:30 or 10:45; that he went back up to the court room at about 10:00 o'clock and he again checked the papers of the case to determine whether an answer had been filed; that he checked a little after 10:00 o'clock up in the District Clerk's office and the Judge's clerk, Miss Love, made a phone call to determine whether or not an answer had been filed; that she talked with Judge Boyd who later entered the default judgment and informed him that an answer had not been filed in the case. When asked whether he actually knew that the answer showing the file mark of 11:10 a. m. was not filed until that time, he testified that he did; that he made certain of that; that he was positive that it was not filed before the judgment was taken; and that he knew of his own knowledge that the answer was not in the hands of the District Clerk or received in that office until 11:10 a. m. on June 30 because he was informed by the Clerk that there was a morning mail that had been put in the compartment there in the intervening time that he was in there and there were about three or four bluebacked instruments in Miss Love's compartment and the answer in question was not among them.
Mr. Gordon, who prepared the answer, testified that he mailed the letter with the answer to the District Clerk on June 28, 1958, and sent a copy thereof to opposing counsel; that he had no knowledge of the judgment having been taken until the date execution was gotten out on it; that he checked the file mark on the letter which accompanied the answer and it showed that it was filed June 30 at 11:10 a. m. It was shown that the copy of the letter addressed to appel...
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