Freeman v. Freeman, 7087

• Decision Date: 20 January 1959
• Docket Number: No. 7087,7087
• Citation: 320 S.W.2d 700
• Parties: W. R. FREEMAN, Appellant, v. Tracy L. FREEMAN et ux., Appellees.
• Court: Texas Court of Appeals

Page 700

320 S.W.2d 700

W. R. FREEMAN, Appellant, v. Tracy L. FREEMAN et ux., Appellees.

No. 7087.

Court of Civil Appeals of Texas, Texarkana.

Jan. 20, 1959.

Rehearing Denied Feb. 17, 1959.

Walter Chalmers, Louis Emden, Houston, for appellant.

Lewis D. Fisher, Houston, for appellees.

DAVIS, Justice.

Exa M. Boyle died, testate, May 31, 1957. Her will was filed for probate in the probate court of Harris County on June 7, 1957. A contest was filed and after proponent and contestees had amended their pleadings, the case came on for trial in probate court on September 25, 1957. On October 28, 1957, the judge of the probate court rendered what he terms a corrected decree purportedly correcting decrees theretofore entered on October 10th and 18th respectively. On October 16, 1957, the contestees filed an appeal bond reciting that they were appealing from a judgment or decree dated October 7, 1957.

Transcript of the appeal from the probate court was filed in the district court on November 7, 1957. Assuming that the appeal bond in the probate court would be applicable to the last judgment filed under the provision of Rule 306c, Texas Rules of Civil Procedure, the district court acquired jurisdiction of the appeal. At the time or after the case was filed in the district court the name of the attorney for the proponent was listed as attorney for plaintiffs on the docket sheet of the district court. On December 9, 1957, contestees, Tracy L. Freeman and wife, Vay Platt Freeman, as appellants in the district court, filed a motion for default judgment, alleging that the proponent, W. R. Freeman, as appellee in the district court had failed to enter his appearance on the docket or answer said appeal on or before Monday after the expiration of 20 days from the date the transcript was filed in the district court. A judgment was entered on December 9, 1957, reciting that the proponent had failed to comply with Rule 330(a) in that he had failed to enter his appearance on the docket or to answer said appeal within the time prescribed by said Rule, and further reciting that default judgment was rendered vacating and setting aside the judgment of the probate court and denying the will to probate. No evidence was heard at the time the purported default judgment was rendered.

The proponent had no notice that such judgment had been entered by the district court until more than 30 days after the date of such entry. On January 21, 1958, the proponent filed a motion to set aside the judgment. And on February 19, 1958, an amended motion, duly verified, was filed alleging, among other things, that the judgment had been surreptiously and fraudulently taken without notice to the proponent or his attorney, the docket sheet showed that the attorney of record for the proponent in the probate court had entered his appearance in the district court, and that his name was placed on the docket sheet prior to the entry of the judgment, etc.

This motion was...