McEwen v. Harrison

Decision Date19 April 1961
Docket NumberNo. A-8216,A-8216
Citation162 Tex. 125,345 S.W.2d 706
PartiesFaye McEWEN, Relator. v. Honorable A. M. HARRISON, District Judge, et al., Respondents.
CourtTexas Supreme Court

Woodgate, Richards & McElhaney, Dallas, Robert A. Fanning, Dallas, for relator.

Thompson, Knight, Wright & Simmons, Dallas, David S. Kidder, Dallas, with firm, for respondent.

CALVERT, Chief Justice.

In this direct proceeding in this court relator seeks a writ of mandamus against Honorable A. M. Harrison, Judge of the District Court of the 6th Judicial District and, alternatively, against Honorable W. L. Thornton, Judge of the District Court of the 44th Judicial District. Texaco, Inc., is also made a respondent. The writ is sought to compel the setting aside of an order entered by Judge Harrison while sitting for Judge Thornton.

The facts giving rise to the proceeding are as follows: On September 20, 1960 relator, seeking a recovery of damages for personal injuries, filed suit in the District Court of the 44th Judicial District against Texaco, Inc., Warren A. Roach, d/b/a Bob Roach Service Station, and L. F. Corrigan. It was alleged in relator's petition that service of citation could be had on Texaco by serving one of its agents at 3900 Singleton Blvd. in Dallas. Citation was duly issued and the sheriff's return thereon recites that it was executed as to Warren A. Roach d/b/a Bob Roach Texaco Service Station by delivering a copy of the citation and of the petition to Warren A. Roach and as to Texaco, Inc. by delivering copies to 'Warren A. Roach'.

Texaco failed to appear or answer, and on October 19, 1960 Judge Thornton, after hearing evidence as to the extent of relator's injuries, rendered a default judgment against Texaco. The judgment is regular on its face and recites that 'though duly served with process' Texaco, Inc. failed to appear or answer but wholly made default. On November 22, 1960 relator non-suited the other two defendants and the default judgment against Texaco thereupon became final. No motion for new trial was filed by Texaco within the time prescribed by the Texas Rules of Civil Procedure.

On January 14, 1961, long after the judgment had become final, Texaco filed a motion to vacate the judgment on the ground that it was void because citation had not been served on any person designated by law as its agent for service. Judge Harrison, sitting for Judge Thornton, heard and granted the motion and entered an order vacating the judgment. Relator asserts that the order is expressly prohibited by Rule 329-b and is therefore a void order.

The parties agree that the motion to vacate which was granted by Judge Harrison may not be treated as a motion for new trial. It was not filed within the time prescribed by Rule 329-b of the Texas Rules of Civil Procedure for the filing of motions for new trial. They also agree that it may not be treated as a bill of review. It does not contain the allegations required to qualify it as such.

Rule 329-b, which governs time for filing and time for action on motions for new trial, contains the following provision:

'Judgments * * * shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial.

After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.'

Our question is whether the emphasized provision of the Rule provides the exclusive method by which the default judgment can be set aside. Respondent Texaco asserts it does not because the record reflects affirmatively that the default judgment is void for want of legal service of citation, and that a void judgment may be set aside in any recognized legal proceeding in the nature of a direct attack. It contends that a motion to vacate is a direct attack.

The quoted provisions of Rule 329-b first became a part of our procedural law, in substantially its present wording, as Subd. 16 of the Special Practice Act passed by the Legislature in 1923. Acts 38th Legis., ch. 105, p. 215. The Special Practice Act was carried into the 1925 Revised Civil Statutes as Art. 2092, and Subd. 16 of the Act became sec. 30 of the Article. It was called 'The Special Practice Act' because it governed practice and procedure only 'in the civil District courts in counties having two or more district courts with civil jurisdiction only' whose terms continued for three months or longer.

Article 2092 was amended from time to time between the 1925 codification and the effective date of the Texas Rules of Civil Procedure on September 1, 1941, at which time Article 2092 was repealed. The applicability of the article was broadened to include civil actions in the district courts of Bexar County in 1939. Acts 1939, 46th Leg., p. 205. Also, in 1935, by special act identified as Art. 2093a, V.A.T.S., the provisions of sec. 30 of Article 2092 were made applicable to 'each District Court sitting for all of its terms or for only some of its terms in a county where three District Courts, with both civil and criminal jurisdiction, sit and have jurisdiction, none of which has more than four terms a year, and one of which sits in and has jurisdiction in not less than two other counties.' Acts 1935, 44th Leg., p. 289, ch. 105.

When the Texas Rules of Civil Procedure were adopted, the provisions of Art. 2092 were carried into Rule 330. Sec. 30 of [162 Tex. 129] the statute became paragraph or subdivision (l) of the Rule. The Rule was made applicable to all civil actions in district courts having continuous terms, that is, successive terms throughout the year without more than two days intervening between any of the terms. It thus became applicable in district courts in all but 36 of the 254 counties. See Vol. 2 Vernon's Annotated Texas Rules, p. 522. In 1955 Article 1919, V.A.T.S., was amended to provide that all district courts should have continuous terms. Acts 1955, 54th Leg., p. 806, ch. 297. A new Rule, 329-b, was adopted January 1, 1955 making certain provisions of Rule 330, including subdivision (l), applicable in all district courts. By amendment effective January 1, 1961 the provisions of Rule 329-b, including the provision above quoted, were for the first time made applicable to proceedings in county courts.

The history of the quoted provision of Rule 329-b has been reviewed in some detail because of its relationship, or lack of relationship, to a great many of the decisions cited by the parties as authority for their respective contentions. No good purpose would be served by reviewing the many cases cited. It is obvious from the history of the provision that decisions in cases tried before the enactment of the Special Practice Act cannot be authority for its application in this or any other case. The principal authority cited by relator for sustaining her contention, Brown v. Clippenger, 113 Tex. 364, 256 S.W. 254, is in that category. The case was tried before 1923. It is equally obvious that decisions in cases tried in county courts before January 1, 1961 cannot be authority for its application. The principal authority relied on by Texaco as sustaining its position, Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89, is in that category. Neither may we regard as controlling authority any decision in a case tried in a district court whose proceedings were not governed by Art. 2092 and its amendments and extensions, or by Rule 330(l). Snow v. Snow, Tex.Civ.App., 223 S.W. 240, no writ history, also relied on by Texaco, was tried in a district court of Bexar County before Art. 2092 was made applicable to district courts of that county.

The emphasized provision of Rule 329-b has had but little attention during its existence, even in cases tried in courts to which it was applicable. In cases involving the right to set aside a default judgment litigants and courts have been prone to ignore or overlook the provision, whether of statute or of Rule, and to decide them under common law rules. Appellate court decisions have usually followed discussion of questions such as whether the particular judgment is void or only voidable, whether it is void on its face or void because of matters appearing on 'the judgment roll', whether being valid and regular on its face it may be declared void because of matters appearing on 'the judgment roll', and whether it may be attacked in a collateral proceeding or only in a direct proceeding. Those discussions do not squarely meet the issue posed by the provision.

In 1924 this court decided Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, in which the Special Practice Act was applicable. A default judgment was rendered against a defendant who had an answer on file and who had no notice of the setting of the case. We held Subd. 16 of the Act applicable to a motion to set aside the judgment after it became final, and said: 'the only legal way to review it is the way provided by this statute * * * .' 263 S.W. 907. In Wichita Falls & S. R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951, we noticed the applicability of Rule 330(l) to a final judgment of a district court of Tarrant County and held that an order setting the judgment aside, on oral motion, more than thirty days after it was rendered, was void. We said that the judgment 'became final thirty days after its rendition, and the trial court was thereafter without jurisdiction to set the same aside, except by a bill of review.' 174 S.W.2d 953. In Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, we held a judgment signed by a judge at his residence was irregular, but not void. In the course of the opinion we observed that Rule 330(l) was applicable, and said that since no motion for new trial was filed within the prescribed time, the judgment 'became final, and, if not void, could be set aside only...

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