Freeman v. Freeman, No. A-7234

CourtSupreme Court of Texas
Writing for the CourtCALVERT
Citation160 Tex. 148,327 S.W.2d 428
Docket NumberNo. A-7234
Decision Date29 July 1959
PartiesTracy Leon FREEMAN et ux., Petitioners, v. W. R. FREEMAN, Respondent.

Page 428

327 S.W.2d 428
160 Tex. 148
Tracy Leon FREEMAN et ux., Petitioners,
v.
W. R. FREEMAN, Respondent.
No. A-7234.
Supreme Court of Texas.
July 29, 1959.
Rehearing Denied Oct. 7, 1959.

Lewis D. Fisher, Houston, for petitioners.

Walter Chalmers, Louis Emden, Houston, for respondent.

W. R. Freeman, Houston, pro se.

CALVERT, Justice.

[160 Tex. 149] This case originated in the probate court of Harris County. Respondent filed an application for probate of the will of Exa M. Boyle. Petitioners filed a contest of the application. The probate judge, after a trial of the issues made by the pleadings, admitted the will to probate. Petitioners perfected their appeal to the district court by filing therein on November 7, 1957 the transcript required by Rule 334, Texas Rules of Civil Procedure.

On December 9, 1957, on motion of petitioners, a default judgment was rendered and entered by the district court sustaining the contest to the application to probate the will, setting aside the order of the probate court admitting the will to probate and certifying the judgment to the probate court for observance. The order recited that the appellee (respondent) had failed

Page 430

to enter his appearance on the docket of the district court or to answer to the appeal as required by Rule 330(a), Texas Rules of Civil Procedure.

On January 21, 1958, after the time had expired for the filing of a motion for new trial and after the judgment had become final under the provisions of Rule 329-b, Texas Rules of Civil Procedure, respondent filed a motion and thereafter first and second amended motions or petitions to set aside the default judgment. The district judge treated the last of the instruments as an amended motion for new trial and overruled it because it was filed out of time and the court had no further jurisdiction of the case. The Court of Civil Appeals treated the instrument as an equitable bill of review and reversed the judgment of the district court and remanded the cause to that court with instructions to set aside the default judgment and place the cause for probate of the will on the docket for trial on its merits. 320 S.W.2d 700.

Rule 330(a) required that respondent 'enter his appearance on the docket or answer to said appeal on or before ten o'clock a. m. of the Monday next after the expiration of twenty (20) days from the date the appeal' was filed in the district court. 1 We take judicial notice that the Rule required respondent to appear or answer on December 2, 1957. An appearance, as [160 Tex. 150] contemplated by Rule 330(a), is entered by appearing in open court and having the appearance noted on the court's docket. Rule 120, Texas Rules of Civil Procedure. The judgment of the district court recites that respondent neither entered his appearance nor answered to the appeal as required by Rule 330(a). But Rule 330(a) does not stand alone, and the cause was ripe for only such action as the law and the Rules of Civil Procedure authorized against respondent.

The record discloses that in entering the default judgment on December 9th the trial court failed to comply with the requirements of Rule 330(b), Texas Rules of Civil Procedure. That Rule provides:

'On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of either party, or on the court's own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation. Non-contested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.'

The transcript before the judge clearly reflected that the case was a contested one, with pleadings filed and issue joined. Rule 330(b) made it the duty of the judge on December 2nd to set the case for trial if a setting was requested, and a default judgment in favor of either of the parties was not authorized before the date on which the case was set. The record before us does not disclose a setting of the case for trial on December 9th, or that the default judgment was rendered because of the failure of respondent to appear for trial on that date. To the contrary, the record affirmatively discloses that the default

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judgment was rendered on December 9th, in response to a motion filed by petitioners on that date, because of the failure of respondent to appear or answer on December 2nd. The judgment was thus erroneously rendered, in violation of Rule 330(b), before the case had been set for trial. In State v. Perkins, 143 Tex. 386, 185 S.W.2d 975, we held that a default judgment of dismissal of a case on appearance day was a violation of Rule 245, Texas Rules of Civil Procedure, requiring cases to be placed on a trial calendar in other classes of courts, and was an erroneous and arbitrary use of power requiring the granting of a new trial.

[160 Tex. 151] Moreover, the character of the judgment rendered was improper and erroneous. Respondent as proponent of the will occupied a position of plaintiff in the probate court. His application to probate the will initiated the proceeding. Petitioners filed their contest of the application and occupied a position of defendants. When appeal to the district court was perfected, Rule 334, Texas Rules of Civil Procedure, required a trial de novo of the matter in that court. In that court the parties occupied the same positions they had occupied in the probate court-respondent as plaintiff and petitioners as defendants. Newton v. Newton, 61 Tex. 511, 513. Subject to...

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76 practice notes
  • In re D.W., No. 2-06-191-CV.
    • United States
    • Court of Appeals of Texas
    • February 19, 2008
    ...City of Georgetown, 53 S.W.3d 328, 332 & n. 2 (Tex.2001); Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 872 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959). 66. N.N. v. Inst. for Rehab. & Research, 234 S.W.3d 1, 6 (Tex.App.-Houston [1st Dist.] 2006, no pet. h.); see S......
  • Estate of Pollack v. McMurrey, No. D-1325
    • United States
    • Supreme Court of Texas
    • June 30, 1993
    ...of Pewthers, to determine that such a judgment would be void. 443 S.W.2d at 395. The Pewthers court relied in turn on Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433, in which this Court held that, because of a conflict with the rules of procedure, the rendition of a default judgment ......
  • In re Baylor Medical Center at Garland, No. 06-0491.
    • United States
    • Supreme Court of Texas
    • August 29, 2008
    ...See In re City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001); Mo. Pac. R.R. v. Cross, 501 S.W.2d 868, 872 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959). We consider stare decisis as having its greatest force in decisions construing statutes and statutory-like prom......
  • Garza v. Maverick Market, Inc., No. C-7275
    • United States
    • Supreme Court of Texas
    • March 8, 1989
    ...in section 13.21 of the Family Code. A judgment of a court of competent jurisdiction is generally presumed valid, Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); however, a judgment is void when it is apparent that the court rendering judgment had no jurisdiction of the subject mat......
  • Request a trial to view additional results
76 cases
  • In re D.W., No. 2-06-191-CV.
    • United States
    • Court of Appeals of Texas
    • February 19, 2008
    ...City of Georgetown, 53 S.W.3d 328, 332 & n. 2 (Tex.2001); Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 872 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959). 66. N.N. v. Inst. for Rehab. & Research, 234 S.W.3d 1, 6 (Tex.App.-Houston [1st Dist.] 2006, no pet. h.); see S......
  • Estate of Pollack v. McMurrey, No. D-1325
    • United States
    • Supreme Court of Texas
    • June 30, 1993
    ...of Pewthers, to determine that such a judgment would be void. 443 S.W.2d at 395. The Pewthers court relied in turn on Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433, in which this Court held that, because of a conflict with the rules of procedure, the rendition of a default judgment ......
  • In re Baylor Medical Center at Garland, No. 06-0491.
    • United States
    • Supreme Court of Texas
    • August 29, 2008
    ...See In re City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001); Mo. Pac. R.R. v. Cross, 501 S.W.2d 868, 872 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959). We consider stare decisis as having its greatest force in decisions construing statutes and statutory-like prom......
  • Garza v. Maverick Market, Inc., No. C-7275
    • United States
    • Supreme Court of Texas
    • March 8, 1989
    ...in section 13.21 of the Family Code. A judgment of a court of competent jurisdiction is generally presumed valid, Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); however, a judgment is void when it is apparent that the court rendering judgment had no jurisdiction of the subject mat......
  • Request a trial to view additional results

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