City of Fort Worth v. Gause, 1652 - 6748.

• Citation: 101 S.W.2d 221
• Decision Date: 03 February 1937
• Docket Number: No. 1652 - 6748.,1652 - 6748.
• Parties: CITY OF FORT WORTH et al. v. GAUSE.
• Court: Supreme Court of Texas

Page 221

101 S.W.2d 221

CITY OF FORT WORTH et al. v. GAUSE.

No. 1652 - 6748.

Commission of Appeals of Texas, Section B.

February 3, 1937.

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

Proceedings on petition in the nature of a bill of interpleader by the City Service Oil Company against George L. Gause and the City of Fort Worth to obtain a determination as to which of defendants was entitled to certain rents tendered into court by plaintiff, wherein defendant Gause filed a cross-action against plaintiff. From an adverse judgment, of the district court defendant Gause appealed to the Court of Civil Appeals, which reversed the judgment and remanded the cause [70 S.W.(2d) 224], and plaintiff and defendant City of Fort Worth bring error.

Judgment of the Court of Civil Appeals affirmed.

R.E. Rouer, City Atty., J.M. Floyd and R.B. Young, Jr., Asst. City Attys., and Phillips, Trammell, Chizum, Estes & Edwards, all of Fort Worth, for plaintiffs in error.

Chas. T. Rowland, of Fort Worth, for defendant in error.

SMEDLEY, Commissioner.

Plaintiff in error Cities Service Oil Company leased from defendant in error, George L. Gause, the east half of lots 9 and 10 in block 36 in the City of Fort Worth for a term of 10 years beginning December 15, 1929, agreeing to pay as rental $175 a month. In July, 1932, plaintiff in error City of Fort Worth notified the oil company that it had become the owner of the property and that future rentals should be paid to it. Gause insisted upon his ownership of the property and right to the rentals; and the oil company filed its petition in the nature of a bill of interpleader in a district court of Tarrant county, making the two claimants defendants, tendering into court rentals due to the amount of $875, and praying that the court determine the ownership of the rentals tendered and make proper order directing to whom future payments should be made. Gause was duly cited to appear and answer on January 16, 1933. He filed an answer on January 12, 1933, containing a number of exceptions, a general denial, and a cross-action against the plaintiff Cities Service Oil Company, alleging the terms of the lease, the failure of the oil company to pay rentals aggregating $2,950 and praying for judgment for such past-due rentals, for cancellation of the lease, and for foreclosure of a lien upon certain improvements and equipment. The clerk filed the answer, but failed to make on the file docket an entry of its filing.

On January 16, 1933, the City of Fort Worth filed its answer, alleging that it had acquired title to lots 9 and 10, block 36, City addition to the City of Fort Worth, at sheriff's sale following a foreclosure suit for delinquent taxes, that the period for redemption had expired and that it was entitled to the rentals paid into the registry of the court and to all rentals to accrue under the lease, and praying that its right and title to said property be quieted and confirmed and the claims of Gause held for naught and that it have judgment for the rentals deposited in the registry of the court and for all rentals to accrue under the lease. On the day that the answer of the city was filed, which was appearance day, the court, unaware that answer had been filed by Gause, called and tried the case in his absence and rendered judgment in favor of the city. The judgment recites that Gause, though duly cited, made default, and adjudges and decrees that the right and title to lots 9 and 10 in block 36, City addition to the City of Fort Worth, in fee simple is vested in the City of Fort Worth, and that the claims of Gause in and to said property are extinguished and held for naught, directs the clerk to pay to the City of Fort Worth the money deposited in the registry of the court, except $100 thereof awarded to the attorneys for Cities Service Oil Company, and provides that future rentals under the lease shall be paid to the city.

Motion for new trial filed by Gause within the time prescribed by the practice act (subdivision 29 of article 2092, R.S.1925) was overruled, apparently because Gause neither alleged in the motion nor undertook to prove that he had a meritorious defense. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 70 S.W.(2d) 224.

Writ of error was granted "on the conflicts alleged." The decision of the Court of Civil Appeals apparently is in conflict with the several decisions cited in the application for writ of error, and with many others, which announce the well-settled rule that one who files a motion for new trial, after the rendition of a default judgment against him (either upon his failure to answer or in his absence after having answered), must, in addition to excusing his absence or failure to answer, allege in his motion facts constituting a meritorious defense and also support the motion by affidavits or other evidence proving prima facie that he has such meritorious defense. See Foster v. Martin, 20 Tex. 118; Dowell v. Winters, 20 Tex. 793; Holliday v. Holliday, 72 Tex. 581, 10 S.W. 690; El Paso & S.W. Ry. Co. v. Kelley, 99 Tex. 87, 87 S.W. 660; Lawther Grain Co. v. Winniford (Tex.Com.App.) 249 S.W. 195; Cragin v....