Freeman v. Freeman

• Decision Date: 29 July 1959
• Docket Number: No. A-7234,A-7234
• Citation: Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (Tex. 1959)
• Parties: Tracy Leon FREEMAN et ux., Petitioners, v. W. R. FREEMAN, Respondent.
• Court: Texas Supreme Court

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.

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 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 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 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.

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 the right of allowable amendment, the cause stood for trial on the pleadings in the transcript sent up from the probate court. The district court was therefore authorized to render against respondent only such judgment as is permitted against a nonappearing plaintiff.

The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit. The cases supporting that proposition are legion. Burger v. Young, 78 Tex. 656, 15 S.W. 107; Truehart v. Simpson, Tex.Civ.App., 24 S.W. 842, no writ history; Hill v. Friday, Tex.Civ.App., 70 S.W. 567, no writ history; Robinson v. Collier, 53 Tex.Civ.App. 285, 115 S.W. 915, no writ history; Johnson v. Griffiths & Co., Tex.Civ.App., 135 S.W. 683, no writ history; Drummond v. Lewis, Tex.Civ.App., 157 S.W. 266, no writ history; American Surety Co. v. Thach, Tex.Civ.App., 213 S.W. 314, no writ history; Chittim v. Parr, Tex.Civ.App., 216 S.W. 638, affirmed Parr v. Chittim, Tex.Com.App., 231 S.W. 1079; Commercial Credit Co. v. Wilson, Tex.Civ.App., 219 S.W. 298, no writ history; Scarborough v. Ward, Tex.Civ.App., 219 S.W. 505, no writ history; Scarborough v. Bradley, Tex.Civ.App., 256 S.W. 349, no writ history; Cornelius v. Early, Tex.Civ.App., 24 S.W.2d 757, affirmed Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6; R. B. George Mach. Co. v. City of Midland, Tex.Com.App., 29 S.W.2d 966; Callihan v. Colorado Nat. Bank, Tex.Civ.App., 58 S.W.2d 143, no writ history; Burton-Lingo Co. v. Lay, Tex.Civ.App., 142 S.W.2d 448, no writ history; Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891; 15-A Tex.Jur. 386, Dismissals, etc., § 42. In some of the cited cases it is said that the only proper judgment which may be rendered against a nonappearing plaintiff is one of dismissal without prejudice. Truehart v. Simpson, supra; Johnson v. Griffiths & Co., supra; Scarborough v. Bradley, supra. In others it is said to be fundamental error to render a judgment on the merits against a nonappearing plaintiff, Early v. Cornelius, supra; R. B. George Mach. Co. v. City of Midland, supra; Burton-Lingo Co. v. Lay, supra, but the soudness of that proposition has been questioned. Munger Oil & Cotton Co. v. Beckham, Tex.Com.App., 228 S.W. 128, 131-132.

But the important question in this case is not whether the judgment entered on the merits by the district court is an improper or fundamentally erroneous one, but whether it is wholly void. If it is only an erroneous or irregular judgment and therefore voidable only, the judgment of the Court of Civil Appeals which grants respondent's motion or petition to set it aside and directs the reinstatement of the cause for trial on its merits is itself erroneous. That is so because the effect of the judgment is to treat the motion or petition as an equitable bill of review and to grant it without proof that respondent had a meritorious cause of action which would have prevented the rendition of the trial court's judgment, but which, without negligence or fault on his part, he was prevented by fraud, accident or mistake from presenting. Merrill v. Roberts, 78 Tex. 28, 14 S.W. 254; Browning v. Pumphrey, 81 Tex. 163, 16 S.W. 870; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; 25 Tex.Jur. 655, 666, Judgments, §§ 235, 241. It is so also because it is in conflict with the opinion of this Court in Texas Employers' Ins. Ass'n v. Arnold, 126 Tex. 466, 88 S.W.2d 473, 474, where, in commenting on the procedure to be followed in such cases, we quoted with approval from Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963, 964, as follows:

'The only relief to an injured party, other than by appeal, is by direct suit setting up equitable grounds for the relief sought. When such a petition for relief at a subsequent term is brought before the proper court, it is not contemplated that the cause shall be divided and tried by piecemeal; one in which a judgment is rendered setting aside the former judgment and the other in a trial on the merits, but every issue arising on the merits must be disposed of, and the relief prayed for is either denied or granted in the one proceeding.'

For other decisions to the same effect, see 25 Tex.Jur. 671-672, Judgments, § 245. It thus appears that the judgment of the Court of...