Borger v. Mineral Wells Clay Products Co., 1389.

• Decision Date: 22 February 1935
• Docket Number: No. 1389.,1389.
• Citation: 80 S.W.2d 333
• Parties: BORGER v. MINERAL WELLS CLAY PRODUCTS CO.
• Court: Texas Court of Appeals

80 S.W.2d 333

BORGER v. MINERAL WELLS CLAY PRODUCTS CO.

No. 1389.

Court of Civil Appeals of Texas. Eastland.

February 22, 1935.

Appeal from District Court, Palo Pinto County; Sam M. Russell, Judge.

Action by the Mineral Wells Clay Products Company against A. P. Borger. Judgment was entered against defendant by default, and from such judgment and an order overruling defendant's motion to vacate the judgment, and sustaining plaintiff's motion to strike out a plea of privilege interposed by defendant, defendant appeals.

Judgment reversed, and plea of privilege directed to be reinstated in accordance with opinion.

Works & Bassett, of Amarillo, for appellant.

W. O. Gross, of Mineral Wells, for appellee.

FUNDERBURK, Justice.

A. P. Borger, a resident of Hutchinson county, commanded by citation duly issued and served to appear before the district court of Palo Pinto county, the 5th day of March, 1934, to answer in a civil suit, employed attorneys residing in Amarillo, Potter county, to represent him. Said attorneys on Saturday, March 3, 1934, transmitted by mail plea of privilege in due and proper form. The letter of transmittal was addressed to Hon. J. A. Brewer, clerk of the district court, Mineral Wells, Tex. It was received at Palo Pinto and filed March 6, 1934, at 1:30 p. m. Previously, and between that time and 10 o'clock a. m. the same day, an interlocutory judgment by default had been rendered against Borger and Borger-McCormick Brick Company, Inc., the case being passed for final judgment to be rendered upon the disposition of another defendant who had duly filed his plea of privilege. The post office address of the clerk was Palo Pinto, Tex., the county seat of the county, about 13 miles distant from Mineral Wells. On March 10, Mineral Wells Clay Products Company, the plaintiff in the suit, filed a motion to strike out the plea of privilege. This motion was set for hearing on March 28, 1934, and notice thereof given to Borger's attorneys. This notice was the first information to Borger, or his attorneys, that the plea of privilege had not been filed in due time. Upon receipt of the notice, said attorneys filed a motion to vacate the interlocutory judgment by default, and to pass upon the plea of privilege, which was heard at the same time as the motion to strike out the plea of privilege. The court, upon the hearing, overruled the motion to vacate the judgment, and sustained plaintiff's motion to strike out the plea of privilege on the ground, as recited in the order, "that said defendant had no valid excuse." From the action of the court on said motions, and the rendition of the default judgment, Borger has appealed.

We are of the opinion that the motion to vacate the judgment by default stated a meritorious defense. The averments of the motion are not as specific as desirable in this respect, but no issue was made on that point, and the recitation in the court's order shows that the motion was overruled on the ground that appellant had not shown a sufficient excuse for not having filed the plea of privilege in time to prevent judgment by default. The verified motion, as well as the evidence offered in support of same, showed conclusively, we think, these facts: (1) That the plea of privilege was placed in the United States mails at Amarillo, Tex., Saturday morning, March 3, 1934; (2) that it was addressed to Mineral Wells rather than to Palo Pinto, because appellant's attorney was under the mistaken impression that the former was the county seat; (3) that other attorneys in Texas having occasion to address the clerk sometimes directed letters to him at Mineral Wells; (4) that appellant's said attorneys had previously addressed at least two letters to the said clerk at Mineral Wells, which replies thereto showed had been received the next day after being mailed; (5) that appellant's attorneys had such facts in mind as a basis for his belief that in due course the plea of privilege would reach the clerk's office Sunday, or at the latest, Monday, thereafter; (6) that the clerk called for his mail Tuesday morning before the call of the appearance docket, but the letter did not arrive until about 1:30 p. m.; (7) that the replies of the clerk to the other letters from the appellant's attorneys previously received showed by the letterheads the clerk's address to be Palo Pinto.

Appellant's motion called attention to the fact that there remained ample time during the same term of court to hear and dispose of the case on the plea of privilege.

It is our conclusion, after having made a careful study of the question presented, that the trial court erred in overruling the motion to vacate the interlocutory judgment by default. Much has been written on the question here presented. The adjudicated cases undoubtedly present many conflicts and inconsistencies. That such is the case is not at all surprising when it is considered that according to most authorities the question is one involving the exercise of "judicial discretion," or the "abuse of discretion." We find it unnecessary to enter into a discussion of the meaning of these terms. There is no reasonable hope that such a discussion would to any extent clarify the subject. (The writer cannot escape the conviction that in practical effect the exercise of judicial discretion by a trial judge means doing as he pleases, unguided by law, while an abuse of such discretion is shown when an appellate court is of the opinion that he should have done otherwise.) Whatever the meaning of discretion —sound or unsound—it certainly cannot be exercised contrary to positive law, nor commonly recognized legal or equitable principles.

In the early case of Dowell v. Winters, 20 Tex. 793, 794, Judge Wheeler, speaking for the Supreme Court, after saying of an application to vacate a judgment, such as the one here involved, that it "addressed itself to the sound discretion of the Court, to be determined by considerations of convenience and equity," further declared: "But the practice in our own Courts ought to be referable to some general principle, to produce uniformity." It was remarked that such applications "ought not to prevail, where the effect would be to delay the trial, unless upon a good excuse for the default, and the presentation of a meritorious defence." (Italics ours.) There was thus clearly implied the holding that, if an application were presented under such circumstances, that the granting of same would work no delay of a trial on the merits it should be granted without requiring a "good excuse." That this implication was intended appears beyond doubt by the subsequent expression of the same distinction, thus: "But where the trial has not been delayed and there is an affidavit of merits, we think the default should be set aside and the answer received, upon some showing by way of excuse for the failure to plead in time." (Italics ours.) That the court meant "some" excuse, and not the "good excuse" required, where the granting of such an application would work delay is further shown as follows: "The excuse proffered in this case was certainly very slight. But it appears that the counsel acted under a mistake of law." The excuse was further denominated "no such excuse * * * as a Court of Equity would deem sufficient." It was further pointed out that it "does not appear that the trial would be delayed," and that "plaintiff would not have been injured or hindered by reason of the default."

Aided by subsequent decisions, we conclude that Dowell v. Winters meant to lay down a rule of procedure which recognized an important distinction between cases in which a "good," "sufficient," "legal," or "equitable" excuse was required to be shown to support a motion to vacate, and cases in which only a slight showing, amounting only to some excuse, would be sufficient. The distinction turns upon the presence, or absence, of facts to show that by the granting of such an application the adverse party would be injured. Presumably the setting aside of a judgment at a subsequent term would be injurious, and hence, it may be stated that in such a case a good excuse must be shown which implies a showing of the absence of negligence or exercise of ordinary care. On the other hand, if the application is made promptly at the same term, and the facts show there will be no material delay, and the failure of the party to answer or appear in time is not due wholly to his fault or neglect, or that of his attorney, but there are some extenuating circumstances, then the application should be granted.

In each of the following cases, except one, the action of the trial court in refusing to vacate the judgment was overruled; the application was made at the same term of court; the prima facie showing of a meritorious defense was required; the excuses sustained were as briefly indicated:

First Nat. Bank v. Southwest Nat. Bank (Tex. Civ. App.) 273 S. W. 951 (delay in mails where party had right to believe same would be delivered in time).

International Travelers' Ass'n v. Peterson (Tex. Civ. App.) 183 S. W. 1196 (letter transmitting answer misspelled the addressee's name, although it was known, and name of firm known. Follows Dowell v. Winters).

Cowan v. Williams, 49 Tex. 380 (amended pleading filed day of trial tendering new issue. Defendant would not have been ready because thereof if present. Volunteer attorney was not acquainted with case. In setting aside order it was said: "Appellant's counsel was unquestionably negligent").

Buford v. Bostick, 50 Tex. 371 (surprise at correct ruling of trial court. Held that "a new trial may be granted on the ground of surprise, even when such surprise is occasioned by a correct ruling of the court, and although negligence may be imputable to his attorney").

Hubb-Diggs Co. v. Mitchell (Tex. Civ. App.) 231 S. W. 425 (two citations served in time, one defective in commanding appearance at impossible date. Attorney had no actual notice of correct...