Hanks v. Rosser

• Decision Date: 22 April 1964
• Docket Number: No. A-9767,A-9767
• Citation: 378 S.W.2d 31
• Parties: Jerry HANKS, Petitioner, v. Joseph N. ROSSER, Respondent.
• Court: Texas Supreme Court

Page 31

378 S.W.2d 31

Jerry HANKS, Petitioner, v. Joseph N. ROSSER, Respondent.

No. A-9767.

Supreme Court of Texas.

April 22, 1964.

Stephenson, Stephenson & Thompson, Jim I. Graves, with above firm, Orange, A. A. DeLee, Port Arthur, for petitioner.

Fred A. Carver, Beaumont, for respondent.

GREENHILL, Justice.

Joseph Rosser brought suit against Jerry Hanks for services which he alleged he had rendered to Hanks and for which Hanks had agreed to pay him. Hanks was served with process on April 24, 1961. Appearance day was May 16, 1961. Hanks failed to file an answer by May 16, 1961; and on May 25, 1961, Rosser took a default judgment. Hanks is seeking equitable relieffrom that default judgment. The district court set aside the default judgment, and entered judgment in Hanks' Favor on a cross-action. The Court of Civil Appeals modified the lower court judgment, by reinstating the default judgment but affirming that portion of the judgment allowing Hanks recovery on his cross-action. 369 S.W.2d 643.

Hanks was a full-time independent druggist. He had a relief druggist only once or twice a week. On the same day that Hanks was served with process, he called an attorney, Thomas, and told him of the lawsuit. Thomas advised Hanks to bring the papers to his office and that he would advise him what to do after reading them. Hanks did not go to Thomas' office, and Thomas never saw the papers. Hanks misplaced the citation. He said they were placed on his prescription counter with his prescriptions and that he just lost them. He never did find them. He thought he had more time in which to answer. As a result, he did not file an answer in time.

Sometime between the day of service of citation and appearances day, Rosser's attorney conversed about the suit with Thomas, the attorney with whom Hanks had talked. On May 24, 1961, after appearance day, Rosser's attorney again saw Thomas and told him that appearance day had passed without an answer having been filed by Hanks, and that a default judgment was going to be taken. Thomas explained that he did not represent Hanks, but would inform Hanks of the matter. Thomas called Hanks that same afternoon, and told him that he had better file an answer to avoid having a default judgment taken against him. Thomas declined to represent Hanks, and recommended another attorney, A. A. DeLee, whose office was in Port Arthur. Hanks telephoned DeLee and made an appointment for the next morning, May 25, 1961. In their meeting in Port Arthur on the morning of May 25, Hanks explained the situation. DeLee Immediately telephoned the district clerk's office in Beaumont and was informed by the clerk that while the suit was ripe for action, no judgment had yet been taken; that nothing had been done except the filing of the petition.

DeLee prepared an answer, which Hanks signed about 4:15 that afternoon. DeLee again called the district clerk, and was informed that still no judgment had been taken. It was too late to drive from Port Arthur to Beaumont and file the answer before the clerk's office would close for the day; so the answer was not filed until 9:18 the next morning. Again, at the time he filed the answer DeLee asked if a judgment had been taken in the case, and 'the person (asked) went back and picked up a file and said, 'No'.' He also testified that at this time he 'was advised by the clerk there that nothing had been done. (So) I filed the answer.' DeLee did not personally examine the file, the docket sheet, or the minutes of the district clerk. In fact, the judge's civil docket sheet showed that a default judgment had been taken May 25, 1961, and the judgment had been entered on the court minutes that same day.

DeLee sent a copy of the answer to Rosser's attorney, who stipulated that he received his copy May 26, 1961, the day it was filed. Rosser's counsel did not inform DeLee that judgment had been taken. Neither party took any further action until about July 18, 1961, when Rosser had an execution to the default judgment issued by the district court. The execution was delivered to the sheriff for proper levy and sale of Hank's property, all of his interest in the drug store and its contents. This was the first that Hanks or his attorney heard of the May 25, 1961, default judgment.

Hanks' counsel promptly sought equitable relief. He brought to the district court a plea for equitable relief based on contentions that he was not negligent in failing to file timely answer to Rosser's petition; that he did not file motion for new trial only because he relied on false information given to him by the district clerk, that he had a meritorious defense to the lawsuit, and that the granting of this equitable relief would be in keeping with justice and would cause no undue delay or prejudice to Rosser. The district court agreed with his position and, setting aside the default judgment, granted him a trial on the merits.

In the trial on the merits, Hanks' defense was sustained so that Rosser recovered nothing, and Hanks recovered on his crossaction $1,000 plus interest. The Court of Civil Appeals found that the facts 'would perhaps be sufficient to establish that appellee (Hanks) had not failed to use due diligence in availing himself of all adequate remedies at law to prevent the judgment from becoming final. That is to say, that in reliance upon such information, he was justified in not having timely filed motion for new trial prior to his petition for Bill of Review.' 369 S.W.2d at 643. That court further stated that it recognized that 'the record unquestionably reflects that a grave injustice will result to appellee (Hanks).' Nevertheless, the court, with one justice dissenting, held that it had no alternative but to reinstate the default judgment. 369 S.W.2d at 646.

Relief by bill of review is made available in this state by Rule 329b(5) of the Texas Rules of Civil Procedure. The rule does not prescribe the standards by which the actions of a defaulting party must be measured except to say that the bill must be 'for sufficient cause' and be 'filed within the time allowed by law.' This bill, beyond question, was filed within the time allowed by law. The question is whether 'sufficient cause' existed.

(1) Since the rule does not attempt to specify what 'sufficient cause' is, the courts have done so in particular cases. A bill of review proceeding is an equitable one designed to prevent manifest injustice. But while manifest injustice to the defaulting party is a material consideration, another is the necessity for there being finality to judgments. The litigating parties are entitled to know when the contest is at an end; and others, including title examiners and purchasers and sellers of land and interests in land have a need for knowledge as to whether or not litigation involving title to land has been finally concluded.

The general rules on the granting of a bill of review are set out in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). This Court there said that before a litigant can successfully set aside a final judgment, he must allege and prove, within the time allowed, (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which was prevented from making by fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on his own part.

The litigant in Hagedorn attempted to rely upon the alleged promise of the clerk of the court to inform him as to when to return to court to defend that suit. The clerk failed to inform Hagedorn, and a default judgment was rendered against him. After an extensive review of the authorities within and without this state, the Court held that this act (or failure to act) on the part of the clerk was not part of his official duties, and that Hagedorn was not entitled to a bill of review under those circumstances.

This Court in Hagedorn, however, went to some length to distinguish cases where parties or their counsel had relied upon offical acts of officers of the Court. After quoting from American Jurisprudence, this Court stated:

'It is his (the clerk's) official duty to know when sessions of the court will be held, what class of business will or will not be disposed of at given time and what his office records show with respect to pending litigation; therefore when he gives an inquiring litigant the wrong information within that field the litigant is not at fault.' (Emphasis added.)

In Hagedorn, there was no fault of the opposite party, his counsel, or of an officer of the court in the performance of his official duties.

The trial court here found that Hanks was not negligent in failing to file an answer because of his having misplaced the citation, and that the default judgment was not caused by his negligence. It will be here assumed that, viewing the matter under bill of review standards, there is no evidence to support these findings, and that Hanks was negligent as a matter of law. This negligence, however, was in failing to file an answer in time, not in his failure to timely file a motion for new trial.

(2) Under the law, Hanks had two rights or remedies: (1) to file an answer to prevent a default judgment, and (2) to file a motion for new trial within ten days after the judgment was taken. Rule 329b (1), Tex.Rules Civ.Proc.

Since there was a reliance on the erroneous official information given by the clerk, it was unnecessary for Hanks to show, as was required under other circumstances in Hagedorn, that he was prevented from filing his motion for new trial because of some accident, fraud, or wrongful act of the opposing party.

Here, because of the incorrect information given by the clerk, within his official duties as set out in Hagedorn, Hanks was misled, and filed an answer instead of a motion for new trial. The Court of Civil Appeals, nevertheless, reversed this cause because it found that Hanks, by bill of review standards as contrasted with those...