Kerby v. Hudson

• Decision Date: 17 January 1929
• Docket Number: (No. 743.)
• Citation: 13 S.W.2d 724
• Parties: KERBY v. HUDSON.
• Court: Texas Court of Appeals

13 S.W.2d 724

KERBY v. HUDSON.

(No. 743.)

Court of Civil Appeals of Texas. Waco.

January 17, 1929.

Rehearing Denied February 14, 1929.

Appeal from Limestone County Court; H. F. Kirby, Judge.

Action by W. B. Kerby against Z. B. Hudson. Judgment for defendant, and plaintiff appeals. Reversed, with instructions.

W. W. Mason, of Mexia, for appellant.

L. W. Shepperd, of Groesbeck, for appellee.

BARCUS, J.

On December 3, 1926, appellee filed suit in the county court of Limestone county against appellant on a verified account for $402.08. Appellant answered by filing a general demurrer and general denial. On February 5, 1927, appellant filed a voluntary petition in bankruptcy and listed the debt of appellee. On September 20, 1927, appellant received his discharge in bankruptcy. On November 25, 1927, the last day of the October-November term of the county court, appellee, without appellant having any notice thereof, took the matter up with the trial court, and had judgment entered in his favor for the full amount of said verified account. Appellant had no notice of said case being tried or of said judgment until after the term of court had expired. On January 18, 1928, appellant instituted this suit to set aside said judgment on the ground that he had a meritorious defense to appellee's cause of action, to wit, his discharge in bankruptcy, and that it was through no fault of his that he did not file said defense prior to the time judgment was taken or that he was not present at the time of the trial; that, under the custom prevailing in the county court of Limestone county, the trial judge, at the beginning of each term of the court, made a list of all active cases on his docket that would be called for trial during the term, and furnished each of the attorneys interested a copy thereof; that appellee's suit against appellant was not at any time during the year 1927 set for trial, it having remained, after the bankruptcy petition was filed, on the inactive docket of the county court; that, during the first part of the October-November term of said court, appellant's attorney, who lived in Mexia, went to Groesbeck and talked with the county judge, and told him that appellant had been discharged in bankruptcy, and obtained permission to amend his answer, pleading said discharge, and was told by the trial court that said cause was not set for trial at said term, and that, if appellee desired said suit tried, he would set same for a day certain and have appellant's counsel notified.

The trial court held that appellant having obtained his discharge in bankruptcy on September 20th, 1927, and not having filed an answer pleading same prior to November 25, 1927, constituted such negligence as would justify it in refusing to set aside the judgment rendered on November 25th, and for said reason alone the court entered judgment denying appellant any relief. Hence this appeal.

Appellant contends that, under the undisputed facts, he was as a matter of law entitled to have said judgment set aside, and further contends that the finding of the court that he was negligent in failing to file his amended answer, setting up his discharge in bankruptcy, is without support in the evidence. Our courts hold that a discharge in bankruptcy is a meritorious defense to a cause of action. Paggi v. Rose Mfg. Co. (Tex. Civ. App.) 259 S. W. 962. Our courts further hold that, where a party has been prevented by fraud, accident, or mistake or any other circumstance not attributable to his own fault or neglect from prosecuting his suit or making his defense, and the opportunity has not been afforded him for moving for a new trial...