Bridgman v. Moore

• Decision Date: 22 November 1944
• Docket Number: No. A-185.,A-185.
• Citation: 183 S.W.2d 705
• Parties: BRIDGMAN v. MOORE.
• Court: Texas Supreme Court

Page 705

183 S.W.2d 705

BRIDGMAN v. MOORE.

No. A-185.

Supreme Court of Texas.

November 22, 1944.

Rehearing Denied December 20, 1944.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Mrs. F. W. Bridgman against W. T. Moore for recovery of rent and damages, wherein the defendant filed a cross-action alleging ownership of an undivided interest in the land and seeking a partition thereof. A judgment of the Court of Civil Appeals, 180 S.W.2d 211, dismissed plaintiff's appeal from an adverse judgment, and plaintiff brings errror.

Judgment of Court of Civil Appeals affirmed.

David E. O'Fiel and C. W. Wiedemann, both of Beaumont, for petitioner.

John H. Land, of Beaumont, for respondent.

FOLLEY, Commissioner.

This suit was filed by the petitioner, Mrs. F. W. Bridgman, against her brother, who is the respondent, W. T. Moore, seeking recovery for rents from, and damages to, certain lands in Jefferson county, which she alleged she owned and had leased to respondent. The respondent filed a cross action alleging that he was the owner of a 1/8 undivided interest in the land and sought partition thereof and recovery for certain improvements he had added to the property. Trial was had in the district court of Jefferson county beginning on June 16, 1942. Fact issues were submitted to a jury and the jury's verdict was returned and filed June 20, 1942. On July 3, 1942, judgment was rendered on the jury's verdict and entered into the court's minutes. The court found that petitioner owned 7/8, and respondent 1/8, of the land, and the decree awarded respondent a 1/8 interest, ordered the land partitioned, and, in keeping with the jury's verdict, allowed respondent a recovery against petitioner for $673.75, and denied petitioner any recovery for the rents and damages she sought.

No motion for new trial was filed within thirty days from the rendition and entry of the judgment. The term of the district court ended on Sunday, July 5, 1942. Such district court is governed by Rule 330, Texas Rules of Civil Procedure, which provides that judgments shall become final after the expiration of thirty days after the date of judgment or after a motion for a new trial is overruled, and that after the expiration of such time the judgment cannot be set aside except by bill of review for sufficient cause.

On August 6, 1942, as shown by supplemental transcript, petitioner filed a motion to set aside the judgment of July 3, 1942, and asked the court to render judgment in her behalf on her motion for judgment non obstante veredicto, theretofore filed by her on June 25, 1942. On August 13, 1942, she filed an amended motion seeking the same relief. On the latter date the court made and entered the following order:

"On the 13th day of August, 1942, came on to be heard the motion of Mrs. F. W. Bridgeman, et al, plaintiffs in the above consolidated cause, to set aside the Judgment entered in the minutes in this cause on the 3rd day of July, 1942, and issue being joined thereon, and the court having considered the motion together with the evidence adduced thereon is of the opinion that the said motion is well taken, and that same should be granted.

"It is therefore ordered, adjudged and decreed that the judgment entered by this court in this consolidated cause on the 3rd day of July, 1942, be and the same is hereby set aside."

On September 18, 1942, the court approved a second judgment which was on that date entered in the minutes. The second judgment is identical with that of July 3, 1942. The petitioner attempted to appeal from the second judgment to the Court of Civil Appeals at Beaumont. That court dismissed the appeal holding that the entry of the second judgment did not vacate the first, and, in the absence of a bill of review, that the first judgment had become final since no motion was filed within thirty days from its date to set it aside. 180 S.W.2d 211.

On the original submission the Court of Civil Appeals refused to order the district clerk to file a supplemental transcript containing an alleged bill of review against the first judgment. One of the points upon which we granted the writ of error was the alleged refusal of the Court of Civil Appeals to direct the filing of the supplemental transcript. However, the record reveals that prior to the overruling of the motion for rehearing in such court the supplemental transcript was filed and was presumably considered at the time the motion for rehearing was overruled. The only question remaining for our determination is whether the trial court's order of August 13, 1942, was effectual to set aside the judgment of July 3, 1942.

Since no motion for a new trial was filed by petitioner before the expiration of thirty days from the date of the judgment of July 3, 1942, under Rule 330 (l), the same became final, and, if not void, could be set aside only by a bill of review. The petitioner contends that the motion upon which the court acted in purporting to set aside the first judgment is sufficient to be treated as a bill of review. We are not in accord with this contention. In such motion she merely seeks to set aside the former judgment on account of numerous errors alleged to have occurred in the course of the trial, and also asks that judgment be rendered for her notwithstanding the verdict. It is not an original proceeding filed as an independent action against respondent alleging a meritorious cause of action. It is therefore insufficient as a bill of review. Humphrey v. Harrell, Tex. Com.App., 29 S.W.2d 963; Hermann Hospital Estate v. Nachant, Tex.Com.App., 55 S.W.2d 505; Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833; Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865, and Nachant v. Monteith, 117 Tex. 214, 299 S.W. 888. Consequently, the attack made upon the former judgment is collateral, and unless the judgment is void the court was unauthorized to set it aside in the hearing upon the motion for new trial. Halbrook v. Quinn, Tex.Civ.App., 286 S.W. 954; Buchanan v. Bilger, 64 Tex. 589; Roberts v. McCamant, 70 Tex. 743, 8 S.W. 543; Bowers v. Chaney, 21 Tex. 363; Wright v. Shipman, Tex.Civ.App., 279 S.W. 296. However, the court has not only the power but the duty to vacate the inadvertent entry of a void judgment at any time, either during the term or after the term, with or without a motion therefor. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 48 A.L.R. 355; Wichita Falls, R. & Ft. W. R. Co. v. Combs, 115 Tex. 405, 283 S.W. 135. The question therefore arises as to whether the judgment is void and thus subject to the collateral attack.

The only indication in the record of anything irregular as to the first judgment is contained in the allegations of petitioner in her amended motion for a new trial filed August 13, 1942. She alleged that on the first day of July, 1942, after the return of the verdict but before the entry of the judgment, respondent caused to be forwarded to petitioner and her attorney a draft of the judgment, and a motion to enter the same, with a statement that it was the judgment respondent was going to request the court to enter; that the trial judge was busy trying another case during the week of June 29, 1942, at which time he became ill and was obliged to discontinue the trial and remain at his home; that respondent, through his counsel, caused a draft of the judgment to be signed by the trial judge at his private residence, without a hearing, and not at the courthouse or in the courtroom, and without notification to petitioner or her counsel; that such judgment was entered and that neither petitioner nor her counsel were advised of its entry; and that petitioner and her counsel had no opportunity to be present in court and contest the granting of such judgment and thus had been deprived of a substantial right. In her petition for writ of error petitioner asserts that the above facts constituted equitable grounds for setting aside the judgment, which she alleges is void. Presumably the alleged vice in the judgment is that it was signed by the judge at his private residence. Petitioner contends that such fact vitiates the decree because it was not rendered in open court.

The order purporting to set aside the judgment recites that evidence was introduced on the hearing of the motion. Such testimony does not accompany the record. However, for the purpose of this opinion, we shall presume that the above allegations...