Kantor v. Herald Pub. Co., Inc.

• Decision Date: 06 January 1983
• Docket Number: No. 12-81-0018-CV,12-81-0018-CV
• Citation: 645 S.W.2d 625
• Parties: Howard KANTOR, Appellant, v. HERALD PUBLISHING COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 625

645 S.W.2d 625

Howard KANTOR, Appellant, v. HERALD PUBLISHING COMPANY, INC., Appellee.

No. 12-81-0018-CV.

Court of Appeals of Texas,

Tyler.

Jan. 6, 1983.

Rehearing Denied Feb. 17, 1983.

Marcia J. McCarron, Bresenhan & Wingate, Houston, for appellant.

Tom D. Rorie, Rorie & Pedersen, Nacogdoches, for appellee.

SUMMERS, Chief Justice.

This is an appeal from the trial court's denial of appellant's petition for an equitable bill of review.

Howard Kantor, as plaintiff brought suit against Herald Publishing Company, Inc., under Cause No. 6171 in the County Court at Law of Nacogdoches County, seeking to set aside a prior judgment rendered against him and in favor of Herald Publishing Company, Inc. in Cause No. 5686 in said court. The original action (No. 5686) was filed by Herald Publishing Company, Inc., against Don Baird, et al, ¹ on May 9, 1978. Such suit was based upon a sworn account alleged to be owing by such defendants as partners. A citation addressed to defendant J.D. Newsome was delivered to appellant pursuant to the trial court's order for substituted service granted under Tex.R.Civ.P. 106. The court in its judgment deemed such service to be valid service on all of the partners. Appellant Kantor made no answer and the court entered an interlocutory judgment by default against him on September 1, 1978. Maurice Bresenhan, representing himself as counsel for the appellant, called counsel for the appellee on October 9, 1978, and indicated an awareness of the entry of the interlocutory judgment against appellant Kantor. Thereafter, on November 14, 1978, Cause No. 5686 was set for nonjury hearing on November 30, 1978. Although the record reflects that a notice of such setting was mailed to Kantor, he did not appear for the hearing. Plaintiff publishing company took a nonsuit as to all other defendants in Cause No. 5686 on December 11, 1979, and final judgment was rendered against the appellant in said cause on that same date.

Appellant contends that he had no notice of the original cause or judgment until his sister notified him that a judgment lien had been placed on family property situated in Harris County, Texas. Shortly after learning of the judgment lien, Kantor filed his petition in the nature of a bill of review in Cause No. 6171 on October 1, 1980. Appellant specifically complained as to the inadequacy of the service of citation in Cause No. 5686. Trial was held May 8, 1981, on appellant's petition for bill of review and on June 11, 1981, the trial court signed a judgment denying Kantor's request to set aside and vacate the default judgment rendered against him in Cause No. 5686.

We affirm.

Kantor's suit in Cause No. 6171 constituted a direct attack on a prior judgment rendered by the same court in Cause No. 5686. 34 Tex.Jur.2d p. 234, "Judgments", Sec. 289, "Direct attack distinguished--Illustrations;" Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895). When such an attack is made, the most common request is a plea for equitable relief against the prior judgment by equitable bill of review. Such remedy is available when a judgment is no longer appealable or subject to a motion for new trial. The court rendering the judgment must have "jurisdictional power" which means the power to hear and adjudicate the subject matter. A bill of review becomes the exclusive method for acquiring relief and vacating a default judgment in a case in which such court had jurisdictional power to render it. Into this category falls those cases in which a default judgment is asserted to be void for want of service, or valid service of process. McEwen v. Harrison, 162 Tex. 125, 131-132, 345 S.W.2d 706, 709-710 (1961); also see Deen v. Kirk, 508 S.W.2d 70, 71-72 (Tex.1974); Northcutt v. Jarrett, 585 S.W.2d 874 (Tex.Civ.App.--Amarillo), writ ref'd n.r.e. per curiam, 592 S.W.2d 930 (Tex.1979).

Since it is fundamentally important in the administration of justice that some finality be accorded to judgments, petitions for bills of review seeking relief from judgments "are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted." The rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

The three elements of a bill of review which ordinarily must be pleaded and proved by a petitioner are (1) a meritorious defense to the cause of action (2) which the movant was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on the part of the movant. Alexander v. Hagedorn, supra 226 S.W.2d at 998. But this general rule does not govern the disposition of all bill of review cases, Petro-Chemical Transport Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974) and the second requirement has been qualified. Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.1979). In the event the bill of review movant was not subject to the jurisdiction of the court for lack of proper process, the movant is relieved from the burden of pleading and proving the second element of Hagedorn; i.e., that the movant was prevented from making a meritorious defense by the fraud, accident or wrongful act of the opposite party. Northcutt v. Jarrett, supra; Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975). The bill-of-review movant's burden of proving a meritorious defense to the original cause of action is discharged when the movant produces proof from which the court determines, as a matter of law, the defense is not conclusively barred and the movant will prevail in retrial if no evidence to the contrary is offered. Baker v. Goldsmith, supra 582 S.W.2d at 409.

Appellant brings forward four points of error in which he asserts the trial court erred (1) in failing to set aside its prior judgment rendered in Cause No. 5686 for the reason that Howard Kantor was never served with process and the Judgment rendered therein was void; (2) in failing to set aside its prior Judgment rendered in Cause No. 5686 for the reason that Howard Kantor was never served with process and the Judgment rendered therein was voidable; (3) in failing to set aside its prior judgment in Cause No. 5686 for the reason that there was no evidence that Howard Kantor was an owner or partner of Don's Thriftee Foods; and (4) in failing to set aside its prior Judgment in Cause No. 5686 for the reason that there was no evidence that Howard Kantor ever ordered any goods, wares or services from Herald Publishing Company, Inc., or authorized anyone else to do so on his behalf. Appellee contends in its counterpoint that appellant failed to meet the burden of proof required of him in an equitable bill of review proceeding.

In reviewing appellant's first and second points of error (asserting that the earlier judgment is void or voidable), it is necessary to consider the movant's burden of proof mandated by the courts in an equitable bill of review proceeding. Such judgment is a valid and proper judgment until such time as it is set aside in a proceeding in the nature of a bill of review. McEwen v. Harrison, supra 345 S.W.2d at 709-10, reaffirmed by the Supreme Court in Deen v. Kirk, supra and in Northcutt v. Jarrett, supra. The record and judgment of the court reveal that the service on defendant J.D. Newsome constituted service on all partners, including Howard Kantor. Further, the court considered that citation of service on J.D. Newsome by delivery to Howard Kantor presumptively effected notice of the suit on Kantor, appellant herein. Even if it were found that the prior judgment was void, such finding would only eliminate the necessity of the moving party, Kantor, pleading and proving the second element of the bill of review test. Appellant's first and second points are overruled.

Appellant's third and fourth points raise the issue of his "meritorious defense" to liability. Kantor pleaded and attempted to prove that such defense existed, arguing that there was no evidence of his partnership with Don's Thriftee Foods, and no evidence that he or an authorized agent had ordered goods or services from Herald Publishing Company, Inc. In reviewing a "no evidence" point we are mindful of the rule that the reviewing court must reject all evidence contrary to the judgment and consider only the facts and circumstances that tend to support the judgment. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.R. 361, 362 (1960). In proving a good and meritorious defense it is necessary that the...