Lyons v. Paul

• Court: Texas Civil Court of Appeals
• Writing for the Court: TIREY; HALE; McDONALD
• Citation: Lyons v. Paul, 321 S.W.2d 944 (Tex. Ct. App. 1958)
• Decision Date: 18 December 1958
• Docket Number: No. 3595,3595
• Parties: Ezzie LYONS, Appellant, v. Kado PAUL et al., Appellees.

Page 944

321 S.W.2d 944

Ezzie LYONS, Appellant, v. Kado PAUL et al., Appellees.

No. 3595.

Court of Civil Appeals of Texas, Waco.

Dec. 18, 1958.

Rehearing Denied March 26, 1959.

Bell & Singleton, Houston, for appellant.

Cain, Taylor & Cain, Liberty Q. C. Taylor, Austin, for appellees.

TIREY, Justice.

This action is one for bill of review to set aside a default judgment. Appellees seasonably filed their motion for summary judgment, which motion was answered by appellant, and upon hearing of the motion for summary judgment the court granted such motion and decreed accordingly. In the judgment we find this recital: '* * * and it further appearing to the Court that this proceeding is a Bill of Review filed by Plaintiff Ezzie Lyons requesting the Court to set aside and hold for naught a Default Judgment previously rendered in Cause No. 16,495, and, in the alternative to hold that said Judgment is completely null and void, and that a retrial be had in said Cause No. 16,495, it further appearing to the Court that in open court on the hearing of Defendant's said Motion for Judgment, counsel for Plaintiff and Defendants stipulated as follows: 'For the purpose of this hearing, it is stipulated that Defendant Ezzie Lyons had a meritorious defense to the Plaintiffs' cause of action in the original suit; * * *"

Plaintiff seasonably perfected her appeal to the Beaumont Court and the cause is here on transfer.

The judgment is assailed on what appellant designates as five points. They are substantially to the effect that the court erred (1) because the undisputed facts show that appellant answered in the trespass to try title suit and therefore no default judgment could have been entered therein against her; (2) because under the undisputed facts the actions of appellees' attorney in connection with the trespass to try title suit constituted fraud and thereby vacated the default judgment as a matter of law; (3) because there are material issues of fact to be submitted to the jury as to whether or not appellant was prevented from asserting her meritorious defense to the trespass to try title suit through the extrinsic fraud of appellees' attorney and through no fault of her own; (4) because the summary judgment wrongfully denied appellant the right to assert her meritorious defense to the trespass to try title suit and thereby deprived her of her property without due process of law and denied her equal protection of the laws, all in violation of appellant's rights under Art. 1, Sec. 19, Constitution of the State of Texas, Vernon's Ann.St. and the 14th Amendment to the Constitution of the United States of America; and (5) because the judgment of the trial court in the trespass to try title suit was null and void by reason of the citation served on appellant in that it failed to notify appellant that she had to file her written answer with the Clerk of the court in order to prevent default judgment from being taken against her, and thereby failed to give appellant proper notice as required by due process of law under the provisions of Art. 1, Sec. 19 of the Constitution of the State of Texas and the 14th Amendment to the Constitution of the United States of America.

A comprehensive statement is necessary. The appellant here is an uneducated colored woman and is a resident citizen of Los Angeles, California. The original action was one in trespass to try title involving 97.2 acres of land in Liberty County, Texas, and the plaintiffs in that action are also colored. Appellant, by the judgment in the original trespass to try title suit, lost an undivided one-third interest in the land which she had paid for with her own money. In the judgment which appellant seeks to have voided she was deprived of her substantial interest in valuable oil lands, it being undisputed that the oil runs totalling approximately $60,000 have been withheld by the Oil Company pending the ultimate outcome of that suit.

Appellant first met the Paul family in November 1925 in Liberty County, Texas, and became a very close friend of the family. It appears that Kado Paul, sometime after he met appellant, went to California and later sent money to appellant to come to California and that she went there in June of 1927, and it appears that she lived with Kado and cared for Kado and his brother, Sidney Paul, in Los Angeles from June 1927 to November 1936, when she married Lyons. She was never married to Kado Paul. About 1930 Kado and Sidney Paul requested appellant to help them purchase the tract of land in question for the use of their father, Ed Paul. They assured appellant that when the land was purchased it would be owned jointly by all three in equal shares. Later the three of them mailed a total of $3,500 to Ed Paul to purchase the property and over one-third of the $3,500 was contributed by appellant from her savings which she had earned through the years as a housekeeper and a waitress; that without appellant's knowledge, Ed Paul purchased the land and took title to the land in his name, and he died intestate sometime prior to 1954, leaving the appellees as his heirs. Appellees, through their present attorney, filed trespass to try title suit against appellant on July 25, 1956. On August 6, 1956, appellant was served by non-resident citation at her home in California. Attached to the citation was a copy of plaintiffs' petition, which was signed by appellees' attorney. She alleges that when she was served with these papers she was under the care and treatment of a doctor and was confined to her bed because of a nervous breakdown and other physical troubles and she so states in her affidavit. She further says that Kado and Sidney Paul knew of her illness at the time. Appellant admits reading the citation which commanded her to appear and file written answer within a certain time but says that since the citation did not clearly state where to file her written answer and since appellees' attorney had signed the attached papers, appellant, with her limited ability to understand, believed it proper to send appellees' attorney her written answer. Thereafter, on August 10, 1956, she mailed to appellees' attorney the following communication which she intended to be a written answer in accordance with the papers served upon her. We quote this letter in full:

'Ezzie Lyons

'1727 West 35th. Place

'Los Angeles 18, California

'Mr. Kerns B. Tayler

'Box 486

'Liberty, Texas.

'Dear Mr. Tayler

'This is in reply to your greeting dayted august 6 1956 I am sure I was with in my rights when i wrote the gulf coast oil co. may the 11, 1955 to have all payments stop on the oil deal untill they made further inquiry from Mr. Sidney Paul and Mrs. Lucy McBride as Mrs. McBride was Mr. Ed. Pauls house keeper also book keeper and she new who bought the place also the date and the amount paid the place was paid for by only three people and heare are they names

t/ Sidney Paul

Kado Paul

and me Ezzie Lyons

s/ Sidney Paul

Kado Paul

Ezzie Lyons

we baught place on a partner ship deal to be devided in three parts so that is what i want is a third i dont no why mr. paul had the deeds maid out in his name as i mailed him all the money to buy the place and i dont no off any one giving him permission to do so the boys was just as surprise as I was when we new he had the place made out to him.

'i have inclosed some copys for you to look over if you need further proof i have it will be glad to coperate with you any way i can i had hoped this could be settle out off court however it is up to kado if he wants to fight me thats up to him.

'do hope this is what you wants to no,

'Yours very truly,

's/ Ezzie Lyons.'

Attached to the foregoing letter were copies of instruments which appellant thought were important to show her ownership of one-third interest in the land in suit. These instruments consist of (1) a copy of an oil and gas lease on the land, executed by appellant in May 1955; (2) copy of an affidavit which had been mailed to appellees Kado and Sidney Paul for their signature and which would, if executed, show that appellant owned one-third interest in the land involved but which had not been signed at the time appellant wrote the foregoing letter; and (3) copy of letter dated December 9, 1955 written by Sidney Paul to appellant in which he acknowledged that the land was owned by Kado Paul, Sidney Paul and appellant in equal shares. Appellant received no reply from appellees' attorney to the foregoing letter. We quote a part of Mr. Taylor's affidavit in the motion for summary judgment:

'* * * that I did not know from this letter or from any other information that said Ezzie Lyons was ill or unable to answer or make her defense in said cause at said time or on the date judgment was entered in said cause; that on September 10, 1956, appearance day as to said defendant I appeared on behalf of plaintiffs, put on testimony and introduced the deed to the land in question from Bernard Stang et ux to Ed Paul, dated June 20, 1929, filed for record December 6, 1929, in Vol. 158, p. 30 of the Liberty County Deed Records; the father of Plaintiffs and through whom they claimed in said cause; that the Defendant Ezzie Lyons failed to appear or to inform me or the Court of any reason therefor; that I did not call to the attention of the trial court Ezzie Lyons' letter to me or file same in said cause as an answer for her therein; that the Court entered default judgment against said defendant; that on November 5, 1956, by letter of said date, attached hereto and marked 'Exhibit B', Ezzie Lyons wrote again to me and which letter I received Nov. 7, 1956, and which letter confirmed to me her understanding of the service in stating, 'it said to appear by filing a written answer;' for the first time by such letter was I informed that she was 'sick' and 'suffers from nose bleeds' and was 'not to get excited' from air travel; that immediately, the same day I received the letter, I...