Kelly Moore Paint Co. v. Northeast Nat. Bank of Fort Worth

• Decision Date: 15 March 1968
• Docket Number: No. 16903,16903
• Citation: 426 S.W.2d 591
• Parties: KELLY MOORE PAINT CO. of Texas, Appellant, v. NORTHEAST NATIONAL BANK OF FORT WORTH, Appellee. . Fort Worth
• Court: Texas Court of Appeals

Page 591

426 S.W.2d 591

KELLY MOORE PAINT CO. of Texas, Appellant, v. NORTHEAST NATIONAL BANK OF FORT WORTH, Appellee.

No. 16903.

Court of Civil Appeals of Texas Fort Worth.

March 15, 1968.

Allen, Bowles & Rogers, and William F. Bowles, Dallas, for appellant.

King & Massey, and Marion L. Massey, Fort Worth, for appellee.

OPINION

RENFRO, Justice.

This suit was brought in the nature of an equitable bill of review by 'Northeast National Bank of Fort Worth' to set aside a default judgment theretofore rendered against 'Northeast National Bank' in favor of Kelly Moore Paint Co. of Texas.

The bill of review was granted and Paint Co. appealed.

On January 16, 1967, Paint Co. filed its application for writ of garnishment before judgment, in which it alleged that it had sued Al Kincade for $1,008.90 and it believed Northeast National Bank was indebted to Al Kincade.

On May 1, 1967, Paint Co. obtained a default judgment against Northeast National Bank for the above amount.

The Northeast National Bank of Fort Worth filed this bill of review on June 29, 1967, and on July 26, 1967, judgment was rendered for the Bank.

In response to request for findings of fact and conclusions of law the court found, among other findings not material here, that the citation in the garnishment action has an entry made by the serving officer which states that service of citation was made by 'delivering to the within named Garnishee, Northeast National Bank, (a corporation, by delivering to) Douglas R . Wosley, Cashier and Registered Agent, in person, a true copy of this writ'; the correct legal name of the defendant is 'Northeast National Bank of Fort Worth'; the deputy sheriff did not serve the citation upon Douglas R. Wooley or Douglas R. Wosley, personally at any time; no copy of plaintiff's petition was attached to the citation; Douglas R. Wooley was not a 'cashier' or a 'registered agent' of Northeast National Bank of Fort Worth on January 17, 1967; Northeast National Bank of Fort Worth was not given notice of default judgment taken against 'Northeast National Bank' pursuant to Rule 239a, Texas Rules of Civil Procedure; on January 17, 1967, Al Kincade had on deposit with the Northeast National Bank of Fort Worth the sum of $6.82; although Wooley saw the citation on his desk sometime during the 17th he was not negligent in failing to deliver it to his superior or the bank's attorney; the Bank had a meritorious defense in that Al Kincade's deposit amounted to only $6 .82 and not $1,008.90; Bank was not at fault and was not negligent in failing to present its defense.

The court's findings refer to Douglas R. Wooley. The statement of facts, however, shows the last name to be spelled Woolley and the President of the Bank so spelled it.

The President of the Bank testified that Bank mail comes either to his desk or to the desk of Woolley, but that all legal matters are supposed to come to his desk. He never saw or heard of the garnishment writ until long after the default judgment had become final.

A vice president of the Bank testified he never heard of the garnishment suit until the latter part of June.

The deputy sheriff whose name is signed on the return testified she served a young man in the middle of the room (bank lobby?). She did not remember his name or physical appearance. Nearly all of her answers were based on what she 'always does' when she serves a legal paper. She remembered asking his name but could not remember his answer. Although Woolley was present with the other witnesses outside the courtroom, she did not recognize him as the man she served.

Woolley testified he was not a cashier on January 17, and never told anyone he was such; he was an assistant cashier on that date; he was never served with a garnishment citation; he has never been served with a citation by a female officer; at bill of review trial he saw the deputy whose name appears on the return, he had never seen her before; sometime on January 17 he saw the citation on his desk, and seeing that it pertained to Kincade's account he caused a 'Hold' to be placed on Kincade's account; nothing was attached to the citation; he placed the citation in his correspondence file; he never heard any more about the garnishment and did not know a default judgment had been entered; he received no notice of default judgment from the district clerk's office.

The trial court could reasonably assume that since all legal matters, under the Bank's usage, were to first go to President Brinkley, Woolley, not having been served personally with citation, was justified in thinking the citation found on his desk either did not qualify as a 'legal matter' or that the President of the Bank had already seen it.

In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), the Supreme Court held: 'Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.'

Admittedly the Bank proved (1) a meritorious defense, (2) the Bank wholly failed to show it was prevented from making that defense by fraud, accident or wrongful act of the opposite party, (3) the Bank proved to the satisfaction of the court that its failure to defend was unmixed with any fault or negligence of its own.

Relief by bill of review...