Glenn W. Casey Const., Inc. v. Citizen's Nat. Bank

• Decision Date: 30 December 1980
• Docket Number: No. 1418,1418
• Parties: GLENN W. CASEY CONSTRUCTION, INC., Appellant, v. CITIZEN'S NATIONAL BANK, Appellee.
• Court: Texas Court of Appeals

Page 695

611 S.W.2d 695

GLENN W. CASEY CONSTRUCTION, INC., Appellant, v. CITIZEN'S NATIONAL BANK, Appellee.

No. 1418.

Court of Civil Appeals of Texas, Tyler.

Dec. 30, 1980.

David Claflin, Austin, for appellant.

Thomas E. Tiemann, Austin, for appellee.

SUMMERS, Chief Justice.

This is an appeal by way of Writ of Error from judgments rendered by the trial court in a garnishment action.

Glenn W. Casey Construction, Inc., appellant (Casey), was allegedly indebted to Eagle Concrete Company (Eagle) by reason of retainage funds which it held for Eagle's benefit. Citizen's National Bank, appellee (the Bank), held a security interest securing a $12,000 debt in all accounts receivable, contract rights, chattel paper, instruments, general intangibles and rights to payment arising out of Eagle's business. On April 24, 1979, the Bank filed an action against Eagle in the 261st Judicial District Court of Travis County, Cause No. 289,133 to recover on the $12,000 debt. On the same day, the Bank filed a garnishment action against Casey in the same court, Cause No. 289,134, to garnish the retainage funds allegedly owed to Eagle in order to satisfy the same debt. A prejudgment writ of garnishment was issued and served upon Casey. The construction company did not answer nor did it participate in the garnishment action.

Thereafter, on May 22, 1979, a default judgment in the amount of $12,000 was rendered in favor of the Bank against Casey in the garnishment action. This judgment by default was rendered prior to a judgment in the suit on the underlying debt (Cause No. 289,133). No motion for new trial was filed and Casey accordingly argues that this default judgment became final after 30 days, i. e., on June 21, 1979.

Subsequent thereto, on July 18, 1979, the Bank obtained a judgment against Eagle on the underlying debt. That day the court also signed two orders in the garnishment action. The first of these was an "Order Setting Aside Void Judgment" which attempted, more than 30 days after the judgment was rendered, to set aside the default judgment of May 22, 1979, as it was rendered prior to judgment upon the underlying debt. The court then rendered a second default judgment against Casey which was identical to the first in all respects but included an additional recitation that judgment on the underlying debt had been rendered in favor of the Bank. Casey filed a Motion for New Trial relative to the second default judgment of July 18, 1979, which was overruled on either September 10 or September 19, 1979. ¹ On October 5, 1979, Casey filed a "supplemental" Motion for New Trial which was denied on that day. Casey also filed a cost bond on October 5 to appeal the judgment. However, when it attempted to file the transcript, Casey was informed by the Clerk of the Austin Court of Civil Appeals (from which this case was transferred) that the cost bond was not timely filed and thus the transcript could not be accepted. Following the Clerk's notification, on November 20, 1979, and within 6 months of both the May 22 and July 18, 1979 default judgments, Casey filed its Writ of Error, from which this opinion issues.

Casey predicates its appeal upon three points of error which will be grouped together for the ease of discussion. By its first point of error, Casey contends that this court must set aside the default judgment rendered against it on May 22 since it affirmatively appears from the face of the record that such judgment was rendered prior to the judgment on the underlying debt in violation of Rule 667. ² Secondly, appellant asserts that the order of July 18 setting aside the May 22 default judgment must be set aside in that it affirmatively appears from the face of the record that the trial court had lost jurisdiction over the garnishment action and such order was issued without notice to appellant. Finally, appellant argues that the trial court erred in rendering the default judgment of July 18 because it had lost jurisdiction of the case, it was rendered without notice to Casey and was rendered before the judgment on the underlying debt had become final.

We reverse and remand.

The appellee Bank has responded to Casey's first point of error only, admitting both in its brief and at oral argument that the trial court lost jurisdiction over the garnishment action after June 21. The Bank interposes the proposition that the May 22 default judgment cannot be set aside by Writ of Error because it appears from the face of the record that the trial court had the jurisdictional power to render it, and likewise the exclusive method of vacating that judgment is by Bill of Review. The Bank also contends that the judgment cannot be set aside by Writ of Error because no violation of Rule 667 appears on the face of the record of the cause. ³

Before discussing Casey's points of error, we must first address the Bank's assertion that the exclusive method of vacating the May 22 judgment is by Bill of Review. In support thereof, appellee cites Rule 329b(5) which provides:

5. Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision 1 of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered. The filing of a motion for new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to extend the court's jurisdiction over the judgment for a period of more than thirty (30) days from the date of the rendition of judgment.

We note initially that a Writ of Error is but another mode of appeal whereby the appellant, or more properly, the plaintiff in error, is entitled to a full review to the same extent as on a direct appeal. Smith v. Smith, 544 S.W.2d 121, 122 (Tex.1976); Riley v. Mead, 531 S.W.2d 670, 671 (Tex.Civ.App.-El Paso 1975, no writ).

In order to prosecute a Writ of Error, three prerequisites must be met. The writ must be filed within six months of the judgment appealed from, the error in the judgment must appear affirmatively "on the face of the record" and the plaintiff in error cannot have participated either in person or by his attorney in the actual trial of the case in the trial court. Tex.Rev.Civ.Stat.Ann. art. 2255 (Vernon 1919) and art. 2249a (Vernon 1939); See also, State Bar of Texas Professional Development Program, Appellate Procedure In Texas 174, 175 (2d ed. 1979); Lewis v. Beaver d/b/a Mid-State Industries, 588 S.W.2d 685, 686 (Tex.Civ.App.-Houston (14th Dist.) 1979, writ ref'd n.r.e.). We hold, for reasons which follow that Casey's suit properly meets the requirements of a Writ of Error.

The Bank, in support of its claim that the judgment can only be remedied by a Bill of Review in the trial court cites McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). It contends that McEwen requires the party against whom a default judgment has been rendered to show that he had a meritorious defense and did not negligently suffer the default judgment to be rendered against him. We agree that such is true if that party is proceeding by a Bill of Review. However, a closer analysis of the McEwen case discloses the specious nature of the Bank's argument when applied to a Writ of Error proceeding. In that case, the petitioner attempted to collaterally attack a default judgment for want of service of citation by a motion to vacate. The court held:

Accordingly, we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Id., at 710. (Emphasis supplied.)

It is clear from other language in McEwen that the word "appeal" used in the quoted paragraph includes appeal by Writ of Error. Griffin v. Browne, 482 S.W.2d 716, 718 (Tex.Civ.App.-Houston (14th Dist.) 1972, writ ref'd n.r.e.). Later, in McEwen, the court stated that:

We hold that appeal by writ of error or a bill of review to set aside the judgment are the exclusive methods by which Texaco may have the default judgment vacated or set aside .... Our judgment is without prejudice to the right of Texaco, Inc. to file an appeal by writ of error or to file a bill of review to set aside the default judgment. Id., at 711.

In Pace Sports, Inc. v. Davis Brothers Publishing Co., 514 S.W.2d 247 (Tex.1974), the supreme court clearly refuted the Bank's assertions when it said:

Our action is not to be interpreted as approving that portion of the opinion of the Court of Civil Appeals stating that the parties appealing by way of writ of error to the Court of Civil Appeals under Article 2255, V.A.C.S., must show that they were not negligent in suffering default judgment to be rendered against them or that they have a meritorious defense to the plaintiff's action which they were prevented from making by fraud, accident or wrongful act of the opposite party. This Court, in McEven (sic) v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), held that a party appealing to the Court of Civil Appeals by writ of error within six months of final judgment may obtain relief if the invalidity of the judgment is disclosed by the papers on file in the case. Requirements pertaining to relief sought by bill of review are not applicable to applicants for writ of error under ...