Garcia v. Ramos

• Court: Texas Court of Appeals
• Writing for the Court: Murray
• Citation: Garcia v. Ramos, 208 S.W.2d 111 (Tex. App. 1948)
• Decision Date: 07 January 1948
• Docket Number: No. 11790.,11790.
• Parties: GARCIA et al. v. RAMOS et al.

Page 111

208 S.W.2d 111

GARCIA et al. v. RAMOS et al.

No. 11790.

Court of Civil Appeals of Texas. San Antonio.

January 7, 1948.

Rehearing Denied February 4, 1948.

Appeal from District Court, Brooks County; L. Broeter, Judge.

Suit in nature of bill of review by Antonia R. Garcia and another against Gregoria Ramos and others to set aside a default judgment. From an adverse judgment, plaintiffs appeal.

Affirmed.

Weatherly & Weatherly, of Falfurrias, for appellants.

Sam G. Reams and Markel Heath, both of Falfurrias, for appellees.

MURRAY, Justice.

We take the following statement of this case from appellants' brief:

"This is a bill of review, brought principally on behalf of an aged Spanish-American spinster and her aged sister, to prevent their being evicted from their homestead, two lots and a house in Falfurrias. Being tenants in common of the homestead, and the spinster having a lifetime homestead right therein, a default judgment was rendered against them in the District Court of Brooks County in a trespass to try title suit brought by some of the tenants in common. Appellants thereafter brought this bill of review, alleging that they were and are aged and ignorant of court proceedings; that they were told by the deputy sheriff who served the citations that they need not appear till he notified them; and that, relying on this and on good faith of their relatives, the tenants in common who filed the original suit, to make a full and true disclosure to the Court, they failed to answer; but that these relatives perjuriously concealed appellants' rights from the Court. Appellees, purchasers from these relatives, but allegedly with knowledge of appellants' rights, filed an exception in the nature of a general exception. The trial court sustained the exception and dismissed the suit. Plaintiffs appeal."

It appears from this statement that appellants give as their excuse for not answering in the original cause and thus permitting a default judgment to be taken against them, that being aged and ignorant of court proceedings, they relied upon the promise of the deputy sheriff, who served the citation on them, to the effect that he would notify them when it was necessary to attend court, and, secondly, that they relied upon the plaintiffs, who were their relatives, to make a full disclosure of the facts and not commit perjury.

This is a suit to set aside a judgment against appellants rendered at a former term, which has expired. Appellants have alleged a good defense to the cause of action, but they have failed to allege facts which show that they were prevented from making such defense, by fraud, accident or the wrongful act of appellees, unmixed with any fault or negligence of their own, as they are required to do before they can secure relief by means of an action in the nature of a bill of review.

They allege that they depended upon the deputy sheriff to notify them when to come to court. In doing so they made him their agent, and when ...