Mercer v. Campbell, 1496.

• Decision Date: 11 October 1935
• Docket Number: No. 1496.,1496.
• Citation: 86 S.W.2d 811
• Parties: MERCER v. CAMPBELL.
• Court: Texas Court of Appeals

86 S.W.2d 811

MERCER v. CAMPBELL.

No. 1496.

Court of Civil Appeals of Texas. Eastland.

October 11, 1935.

Appeal from Rockwall County Court; Claude Isbell, Judge.

Action by Fred Mercer against L. R. Campbell. From an order granting defendant's motion to set aside judgment and quash execution, the plaintiff appeals.

Reversed and remanded.

H. M. Wade, of Rockwall, for appellant.

Mike Reinhardt, of Rockwall, for appellee.

GRISSOM, Justice.

Appellant filed suit against appellee in the county court of Rockwall county on a promissory note. Citation issued requiring the appearance of appellee at the next regular term of said court, which term began on the 2d day of July, 1934, and which citation, according to the officer's return thereon, was served on the appellee on June 20, 1934. Thereafter, on the 21st day of July, judgment by default was entered against appellee herein.

At a subsequent term of said court a hearing was had on what is denominated by appellee as its "motion to set aside judgment and to quash execution." There is no allegation in the motion, or bill of review, as to when the appellee discovered that a default judgment had been taken against him. No reason is alleged why he did not appear at the same term of court at which the judgment was entered and file a motion for a new trial setting up the grounds alleged in the bill of review, or appeal; nor is there any allegation of an excuse for failure to pursue his legal remedies, nor that such remedies were inadequate. The Supreme Court of Texas, in the case of Caperton v. Wanslow, 18 Tex. 125, under a similar situation reversed a judgment setting aside a default judgment because the petition did not distinctly allege that the defendant in said default judgment did not know of the judgment until after the term. Judge Wheeler, in writing the opinion for the court, used this language: "It is the well settled doctrine of this Court, that, to entitle a party to have the judgment of a former Term set aside and a new trial awarded, he must make out a case which would have entitled him to a new trial, if applied for at the Term, and show a sufficient legal excuse for not having then made his application [Cook v. De la Garza], 13 Tex. [431], 444; Spencer v. Kinnard, 12 Tex. [180], 181; Goss et al. v. McClaren, 17 Tex. [107, 67 Am. Dec. 646]. The petitioner has manifestly failed to bring his application within the rule. No excuse is shown for not having made the application within the Term. It is not averred that the party did not know of the judgment rendered against him until after the Term. That inference may be deduced argumentatively, from the averment that he understood that the cause was to be continued. It...