Middlemas v. Wright, 6299

• Decision Date: 21 March 1973
• Docket Number: No. 6299,6299
• Parties: Clarice MIDDLEMAS et al., Plaintiffs in Error, v. Clint M. WRIGHT, Defendant in Error.
• Court: Texas Court of Appeals

Page 282

493 S.W.2d 282

Clarice MIDDLEMAS et al., Plaintiffs in Error, v. Clint M. WRIGHT, Defendant in Error.

No. 6299.

Court of Civil Appeals of Texas El Paso.

March 21, 1973.

Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for defendants-appellants.

Logan, Steib, Lewis, Middlebrook & Symes, Curt F. Steib, San Angelo, Perkins & Kirwan, M. J. Kirwan, Jr., Midland, for appellee.

OPINION

WARD, Justice.

Five of the sixteen named defendants below appeal by writ of error from a declaratory judgment rendered against them as the result of a non-jury trial in which neither they nor their attorneys actually participated although the attorneys had filed an answer for them. The trial Court judgment declared that a mineral deed by which the plaintiff, Clint M. Wright, claimed the minerals to a certain section of land was valid and superior to a prior deed from the common grantor by which the claim of the defendants was made. The judgment of the trial Court is reversed and remanded.

The plaintiff's suit sought to establish the validity of a deed dated May 24, 1971, from Willie Irene Scott to the Plaintiff, conveying the mineral interest of the grantor in Section 51, Block H, Dallas and Wichita Railway Company Survey, of Gaines County, and determining that the deed conveyed to the plaintiff all of the interest owned by Willie Irene Scott in said Section 51. The plaintiff alleged that there existed a deed dated February 10, 1971, from Willie Irene Scott to Clarice Middlemas and the other defendants made parties to this suit which purportedly conveyed all of the mineral interest of the said grantor in Section 51, Block C--31, in Gaines County; it was alleged that a question had arisen as to whether the deed dated February 10 was intended to cover Section 51, Block H, Dallas and Wichita Railway Company Survey, and, if so, whether the deed of May 24 to Clint M. Wright was valid and conveyed all of the interest owned by Willie Irene Scott in Section 51, Block H, Dallas and Wichita Rainway Company Survey, on and after February 10, 1971.

An answer was filed to this suit on behalf of all of the defendants by one firm of attorneys. This firm then filed an application to withdraw as attorneys on December 7, 1971. The motion to withdraw was granted by the trial Court by order entered December 21, 1971. The case proceeded to trial in the absence of any of the defendants or of any attorney representing them and final judgment was entered in favor of the plaintiff on January 4, 1972.

In this regard, and by their last point, the defendants-appellants complain that the Court erred in trying the case and in rendering the judgment without any notice to them of any setting of the case for trial on January 4, particularly in view of the fact that the record does not reflect that they were ever notified of the application to withdraw or of the Court's order granting the application. The record in this case consists of both the transcript and a statement of facts, and is silent regarding any notification to the appellants of either the application of the attorneys to withdraw or of the Court's order granting the application. The statement of facts and the judgment positively reflect that they were not present during the trial and that they did not participate in the trial either personally or by counsel. When questioned by the Court as to the absence of the appellants or their counsel, the following admission was made by the attorney for the plaintiff:

'They had a lawyer from East Texas who withdrew from the case. I notified him of this hearing even though he had withdrawn so that he could notify the people that he did represent. I never heard anything from him.'

Having qualified to proceed by writ of error, the appellants are entitled to a full review to the same extent as on a direct appeal. The remedy brings before the appellate Court the whole case for the revision of errors properly assigned, and it is not necessary that appellants excuse their failure to defend the case in the trial Court or to show that they have a meritorious defense. Roberts v. Mullen, 417 S.W.2d 74 (Tex.Civ.App.--Dallas 1967), aff'd 423 S.W.2d 576 (Tex.Sup.1968); Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.--Austin 1967, writ ref'd n.r.e.); Appellate Procedure in Texas, Sec. 5.1 (1964).

In the light of these rules, we are of the opinion that the record presented to us compels a remand. We take judicial notice of the rules of practice of the District Court of Gaines County. McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 184. These rules provide that an attorney filing a motion to withdraw from a case should embody therein the statement that the client has been notified and giving the address of the client. The rule then provides that this is to enable the Court to notify the client direct of any setting. The rule regarding certificate of service and furnishing addresses was not complied with, nor from the questions asked by the Court does it appear that he was able to notify the defendants. While such a rule is directory rather than mandatory, it seems that its violation in this instance on the face of this record led to a misunderstanding whereby the attorneys for the appellants were not notified by the plaintiff's counsel of the setting until after ...