Cooper v. Hall
| Decision Date | 11 December 1972 |
| Docket Number | No. 8297,8297 |
| Citation | 489 S.W.2d 409 |
| Parties | Joe COOPER, Individually and dba Joe A. Cooper Well Service, Appellant, v. Elsie Mae HALL, a feme sole, Appellee. |
| Court | Texas Court of Appeals |
Clayton & Clayton, Bob D. Slough, Amarillo, for appellant.
Lemon, Close, Atkinson & Shearer, G. R. Close, Perryton, for appellee.
This is an appeal from an order denying relief from a default judgment in a bill of review proceeding. Affirmed.
On August 25, 1970, Elsie Mae Hall, a feme sole, plaintiff-appellee, instituted suit to recover from Joe Cooper, individually and dba Joe A. Cooper Well Service, defendant-appellant, an unpaid sum of $3,000 allegedly loaned by her to Cooper. After personal service of citation on August 29, 1970, the defendant-appellant filed no answer and default judgment was entered against him for the sum of $3,000 plus 6 per cent interest from date of judgment and costs. No motion for new trial was filed after judgment. After the issuance and return of execution upon the judgment, Cooper filed his petition for bill of review.
As petitioner, Cooper alleged that he has a meritorious defense and, in this connection, asserted that he had not borrowed the money in question from Elsie Hall but from a third party, Bobby Miller, to whom he had repaid the sum of $2,500 plus $400 in interest. Cooper further alleged that he would have appeared and asserted such defense to the suit but for his reliance on representations made by the attorney representing Elsie Hall that plaintiff would not proceed further with the case without notifying Cooper. The appellee, as respondent, answered the petition by general denial and specifically alleged that Cooper does not have a meritorious defense and that he was negligent in failing to defend the cause or to timely file a motion for new trial after the taking of default judgment. The petition for bill of review was heard by the trial court without a jury and resulted in the entry of the order from which this appeal is brought. The appellee will sometimes be referred to as 'plaintiff' or 'Elsie Hall,' while the appellant will sometimes be designated as 'defendant' or 'Cooper.'
Upon appellant's request, the trial court filed its findings of fact and conclusions of law upon which the order denying the petition for bill of review was entered. The pertinent portions of such findings and conclusions are set out as follows:
'The Court finds from a preponderance of the evidence the following facts:
'3. Shortly after being served with citation, Defendant talked to the attorney for Plaintiff, and advised him of his version of the facts. The Defendant claimed he owed at the most $500.00 because he had repaid $2,500.00 of the $3,000.00 loan to one Bobby Miller. Defendant was asked if he was offering to settle for $500.00, to which he replied, 'Maybe, less all his expenses which he would have to figure.' The lawyer advised he would consult with Plaintiff. He requested the Defendant to figure his expenses and advise the attorney of his offer as soon as possible, and that in the meantime no judgment would be taken against him. It was understood that the Defendant would make an offer to Plaintiff's attorney within a reasonable time.
'4. Defendant made no attempt to get back in touch with Plaintiff's attorney at any time.
'5. Plaintiff's attorneys wrote Defendant on October 30, (sic) 1970, the following letter:
Ochiltree County, Texas
'Dear Joe:
If you intend to contest this case, you should retain an attorney and file an answer immediately. If an answer is not filed by this Monday, we will assume that you are not intending to contest the case and default judgment will be presented. If you have any offer to make in settlement of this case, you should do so before Monday.
'THE CONCLUSIONS OF LAW OF THE COURT HEREIN ARE THE FOLLOWING:
After the proper issuance, service and return of citation upon the defendant, it is basic that under the law he had two rights or remedies: (1) file an answer to prevent a default judgment, and (2) file a motion for new trial within ten days after the judgment was taken. Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964); Rule 329b(1) Texas Rules of Civil Procedure. In the event of failure to pursue either of the above mentioned remedies, a party may seek equitable relief by a bill of review. Under the rules generally applicable, before a losing party can successfully invoke a bill of review to set aside a final judgment, he must allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Gracey v. West, 422 S.W.2d 913 (Tex.Sup.1968).
In a bill of review proceeding filed after the expiration of the time for filing a motion for new trial, as in this case, it is the general rule that the issues of (1) negligence or fault on the part of the defendant, (2) fraud, accident or wrongful conduct on the part of the plaintiff, and (3) meritorious defense are tried together in one complete trial in which every issue is disposed of and relief against the judgment previously entered is denied or granted as appropriate and warranted by the proof and pleading of the entire case. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.Sup.1966); Texas Employers' Ins. Ass'n v. Arnold, 126 Tex. 466, 469, 88 S.W.2d 473, 474 (1935); Humphrey v. Harrell, 29 S.W.2d 963, 964 (Tex.Com.App.1930).
The appellant challenges the trial court's denial of his petition for bill of review in 16 points of error, asserting generally that (1) there was no fault or negligence on his part in failing to file an answer or motion for new trial, (2) his failure to assert his defense resulted from the wrongful conduct of the opposite party, and (3) he has a meritorious defense to the cause of action.
The appellant's first six points of error deal with his contentions relating to various aspects of his failure to file an answer. In points nos. 1 and 2, he complains of the trial court's denial of his petition for bill of review on the grounds that he was not negligent in failing to file an answer and that such failure was not intentional or the result of conscious indifference. In points nos. 3, 4 and 5, he asserts that the trial court's finding of fact no. 6 to the effect that a letter dated October 20, 1970, from appellee's attorney to appellant notifying him as to appellee's plans to take a default judgment was properly placed in the United States mail is supported by (1) no evidence, (2) insufficient evidence, and (3) is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In appellant's sixth point, he contends that he was prevented from asserting his defense because of the fraud, accident or wrongful acts of the opposite party.
It is undisputed that within a short time after Cooper was served with citation, he went to the offices of the attorney representing Elsie Hall and advised him of his version of the transaction. Cooper testified that he had never borrowed any money from Elsie Hall, but that he had borrowed the sum of $3,000 from a Mr. Bob Miller and had received the money from Miller on two separate occasions--$2,000 by Western Union telegram, dated May 22, 1970, and $1,000 subsequently delivered to him in cash. Cooper further testified that he had repaid to Miller the sum of $2,500, and exhibited a $2,500 cancelled check dated June 9, 1970, which had been paid to Miller. Also, Cooper claimed that he had paid Miller and additional sum of $400 as interest on the loan. Cooper stated, also, that during the conference the cancelled check and a copy of the telegram were shown to the attorney, and that the attorney asked him if he wanted to pay the other $500. Cooper then told the attorney that he didn't owe Elsie Hall and that his dealings were with Miller, and he felt that he should make the repayment to him. He stated also that the attorney advised him that he would talk to Elsie Hall and '. . . told me not to worry, if anything else come (sic) up he would let me know.'
Cooper further testified to the effect that based upon such statement by the...
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