Mackay v. Charles W. Sexton Co.

• Decision Date: 28 May 1971
• Docket Number: No. 17653,17653
• Citation: 469 S.W.2d 441
• Parties: Richard L. MACKAY, Appellant, v. CHARLES W. SEXTON COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 441

469 S.W.2d 441

Richard L. MACKAY, Appellant, v. CHARLES W. SEXTON COMPANY, Appellee.

No. 17653.

Court of Civil Appeals of Texas,

Dallas.

May 28, 1971.

George M. Elliott, Brown, Elliott, Brown, Vetter & Llewellyn, Dallas, for appellant.

John Emmett, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

FACTS

On August 5, 1968 Charles W. Sexton Company filed suit against Richard L. Mackay and Swing-Aire Travelers Club, Inc., being numbered 68--6637--B in the 44th District Court of Dallas County, Texas. On August 13, 1968 both Mackay and Swing-Aire Travelers Club, represented by the law firm of Palmer, Palmer & Burke, filed a verified answer. On January 12, 1970 Palmer, Palmer & Burke advised Mackay by certified mail that by order dated January 5, 1970 the law firm had been granted leave by the district court to withdraw as attorneys of record for Mackay and Swing-Aire Travelers Club. In the letter Mackay was advised to secure other counsel to present him and was further specifically advised that the case was set for trial on January 26, 1970 at 9:00 a.m. On January 13, 1970 John Emmett, attorney for Sexton, addressed a letter to Mackay advising that the case was set for trial on January 26, 1970 at 9:00 a.m.; that the case had a Number One setting; and that due to out of state witnesses plaintiff would announce ready for trial. Both of these letters were received in Mackay's office at 3883 Turtle Creek Boulevard, Dallas, Texas. At the time the letters were received in Mackay's office he was in New York City. Mackay telephoned his office and was advised by his secretary that his attorneys had withdrawn from the case but the date of the trial setting was not relayed to him. Mackay returned to Dallas on January 23, 1970 but did not go to his office.

On January 26, 1970 neither Mackay, nor anyone representing him, appeared and a judgment Nil dicit was rendered against him in the amount of $3,718.50. He returned to his office on the 2nd or 3rd of February, 1970 and discovered for the first time that judgment had been rendered against him. On February 13, 1970 Mackay filed a motion for new trial in which he said that the reason he did not appear for the trial was because his secretary had not informed him of the setting. He said his 'secretary mistakenly did not recognize the significance of the notification submitted by Mr. Palmer and Mr. John Emmett with respect to the trial setting.' He also stated that while he returned to the City of Dallas on January 23, 1970 he did not go to his office; that on Sunday, January 25, 1970, his wife sustained a fall which confined her to her bed for two weeks during which time he was not able to go to the office because he had to take care of the children at home. He said he returned to the office on the 2nd or 3rd of February, 1970 and found a copy of the judgment rendered against him. On February 6 he discovered the two letters which had been sent to him advising of the court setting. He hired another attorney who filed a motion for new trial on February 13, 1970. This motion was abandoned by Mackay and his attorneys who did nothing further until the filing of the petition for bill of review on April 30, 1970.

In his petition for bill of review Mackay sets forth the facts related above why he did not appear on the trial setting. He also alleged that 'as a result of his misunderstanding responsibility for representation had not been passed to another attorney at the time the matter came on for trial * * *.' He alleged that he had no adequate remedy at law by way of appeal or writ of error and that 'because of the accident or mistake of Mr. Mackay's secretary, without any fault or negligence on his part, Mr. Mackay has been compelled to suffer a judgment by circumstances beyond his control.' He also said that he had a meritorious defense in that he did not 'request nor cause such alleged policy to be issued nor did Mr. Mackay sign an application of any sort for said policy.' A copy of the petition in the original suit was not attached to the petition for bill of review.

Sexton filed its motion, and its amended motion, for summary judgment, supported by affidavits. Mackay replied to the motion and filed affidavits in which he reasserted the facts above related concerning his failure to appear on the trial of the original suit. In a supplemental reply to the summary judgment Mackay, through his attorney George M. Elliott, for the first time states that he was denied jury trial in the original suit 'notwithstanding he timely paid a jury fee, and never waived same.' Elliott, in a supporting affidavit, said that in the original cause Mackay 'paid a jury fee in December of 1968, and at no time did he waive the right to having a jury rule on the facts involved in said cause.'

On September 10, 1970 the trial court sustained the summary judgment motion and rendered judgment denying the bill of review. Mackay appeals.

OPINION

Appellant asserts in two points of error that (1) the trial court erred in holding, as a matter of law, that no genuine issue of fact was presented by the pleadings, affidavits and exhibits and (2) the trial court erred in granting summary judgment when the record discloses that a jury was waived by the court without authority from appellant. We overrule each of these points and affirm the trial court's judgment.

A bill of review is an equitable proceeding designed to prevent manifest injustice. Rule 329b(5), Vernon's Texas Rules of Civil Procedure, provides that after the expiration of thirty days from the date of judgment or motion for new trial being overruled the judgment may be set aside by bill of review for sufficient cause. The Supreme Court in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) set forth the rules of law applicable to bills of review and announced three conditions that must be alleged and proved by the losing party before he can successfully invoke a bill of review to set aside a final judgment against him. These three requisites are: (1) a meritorious defense to the cause of action; (2) which the moving party was prevented from making because of fault, accident or wrongful act of the opposite party; and (3) unmixed with any fault or negligence of his own. These rules have been reasserted in a number of opinions by the Supreme Court since Hagedorn. Hanks v. Rosser, 378 S.W.2d 31 (1964); Gracey v. West,422 S.W.2d 913 (1968); and French v. Brown, 424 S.W.2d 893 (1967).

A careful review of the record will reveal that appellant failed to comply with any of the three essential requirements of the law to justify the invocation of equitable relief by bill of review.

Concerning the first requirement that a movant for bill of review must allege and prove a meritorious defense to the original cause of action, this record is entirely devoid of any proof concerning the original cause of action. Appellant does not attach copy of the pleadings, nor does he incorporate by reference any of the allegations in the prior suit, so we have nothing to officially advise us as to the nature and character of the original cause of action. While appellant does make certain statements concerning insurance policies, a contract to purchase an airplane, as well as certain conclusions concerning his relationship to the contract, we are left entirely in the dark as to the exact allegations to which he is responding. The conclusory statements of appellant to the effect that he had a meritorious defense are not sufficient. As said by the court in Winn v. Houston Building & Loan Ass'n, 45 S.W.2d 631 (Tex.Civ.App., El Paso 1932):

'* * * the pleadings and the result of the former suit in which the default judgment was obtained should be set forth so that the court on the hearing may know the issues...