Moore v. Mathis

• Decision Date: 28 June 1963
• Docket Number: No. 3816,3816
• Citation: 369 S.W.2d 450
• Parties: Virgil C. MOORE, Appellant, v. Marie E. MATHIS et al., Appellees.
• Court: Texas Court of Appeals

Page 450

369 S.W.2d 450

Virgil C. MOORE, Appellant, v. Marie E. MATHIS et al., Appellees.

No. 3816.

Court of Civil Appeals of Texas, Eastland.

June 28, 1963.

Rehearing Denied July 19, 1963.

Abney, Howell, Abramson & Burleson, Phil Burleson, Dallas, for appellant.

Fritz and Vinson, Edward R. Vinson, Dallas, for appellees.

GRISSOM, Chief Justice.

On October 12, 1962, Virgil C. Moore sued Marie E. Mathis and the Sheriff of Dallas County to enjoin enforcement of a default judgment obtained by Mathis against Moore on June 23, 1961 and for a bill of review. The court refused to try the bill of review on its merits and, after a hearing, denied an injunction. Moore has appealed.

Appellant's first point is that the default judgment was either an interlocutory order in the main case or a void judgment in the severed case and, therefore, the court erred in refusing to enjoin its enforcement. His second point is that the judgment is void because it violates the guarantees of due process of law accorded appellant by the Fourteenth Amendment to the Constitution of the United States and due course of law by Article 1, Section 19, of the Constitution of Texas, Vernon's Ann.St. His third point is that the court erred in denying appellant's bill of review without hearing evidence thereon.

In Mathis' trial petition in cause number 41754-A, styled Marie E. Mathis v. Signature Loans, Inc., et al., a copy of which was served on Moore on April 30, 1960, she alleged that Moore and other defendants had collected usurious interest from her and had used unreasonable collection efforts causing mental and physical suffering. Although cited, Moore did not answer. On June 16, 1961, Marie Mathis testified at a hearing on the default as to the financial transactions involved and to harassment. On June 23rd, additional evidence was introduced concerning Moore's participation in the collection of usurious interest and unreasonable collection efforts. On June 23, 1961, the court severed plaintiff's cause of action against Moore from that against all other defendants, tried the severed cause, giving it number 41754-2-A and styling it Marie E. Mathis v. Virgil C. Moore, and rendered judgment for Mathis against Moore.

On October 31, 1961, Moore filed a motion to set aside the default judgment on the grounds that (1) it failed to dispose of all parties and issues; (2) the pleadings did not state a cause of action against Moore; (3) the judgment did not conform to the pleadings and (4) it purported to grant a severance when only an interlocutory decree was authorized by law. In the alternative, Moore alleged that (5) the severance deprived him of due process and due course of law and that (6) the judgment was void because there were no pleadings "in the severed cause" upon which a judgment could be based. A hearing was had on this motion on August 31, 1961, and it was then overruled. Moore excepted. On December 21, 1961, Moore and the other defendants in the original case filed, in case number 41754-2-A, a "joint and several, combined and separate", motion to set aside said default judgment against Moore, urging substantially the same grounds as in Moore's motion which had been overruled on August 31, 1961. This motion was overruled on June 20, 1962. The defendants excepted.

On October 12, 1962, Virgil C. Moore filed this suit alleging substantially the same grounds as those contained in said two motions. He prayed that Mathis and the Sheriff be enjoined from enforcing the default judgment. He did not ask that the default judgment be set aside. Ten days later Moore filed an amended petition, alleging substantially the same grounds and seeking only an injunction.

On November 8, 1962, Moore filed the pleading on which this case was tried. He designated it as his second amended original petition "and bill of review." He alleged substantially the same grounds as theretofore but added general allegations of a meritorious defense and diligence. He prayed for an injunction preventing enforcement of an execution and, in the alternative, for a bill of review setting aside the default judgment of June 23, 1961, and that this cause be consolidated and tried with the main case. Appellees denied Moore's allegations and alleged that Moore's petition failed to state a cause of action; that he had failed to allege fraud, accident or mistake in procuring the default judgment, or diligence on his part in seeking to set it aside. Appellees further alleged that the validity of the default judgment had been adjudicated and that Moore's asserted cause of action was barred by limitation and laches.

In a trial to the court, it was held that, even if Moore had a meritorious defense to the default judgment, Moore had not alleged the essentials of a bill of review. Therefore, without hearing evidence upon Moore's alleged meritorious defense, the court, after hearing evidence, rendered judgment that Moore take nothing.

The default judgment here attacked as void reads as follows:

"NO. 41754-A

"MARIE E. MATHIS, Plaintiff IN THE 14TH JUDICIAL

Vs. DISTRICT COURT OF

DALLAS COUNTY, TEXAS

SIGNATURE LOANS, INC.,

ET AL Defendants

"FINAL JUDGMENT

"On the 23rd day of June, 1961, came on to be heard the above entitled and numbered cause wherein Marie E. Mathis is the Plaintiff and Signature Loans, Inc., Signature Indorsement Company, Signature Indorsement Company, Finance Operating Company, Service Management Company, W. Lee Moore, Jr., Virgil C. Moore, Mid-Southern Service Company, Federal Mortgage Credit Company, Houston-American Finance Corporation and Houston-American Life Insurance Company, are Defendants, and came the Plaintiff and his attorney and announced ready for trial but came not Defendant, Virgil C. Moore, and the Court having found that the said Defendant, Virgil C. Moore was duly served with citation herein but failed to enter any appearance in this cause but wholly defaulted, and that Plaintiff's cause of action as to said defaulting Defendant should be severed for convenience of trial and for other reasons from Plaintiff's causes of action against the other Defendant; and the Court having found that Plaintiff's cause of action as to usury double damages is liquidated, but that Plaintiff's cause of action for actual damages for unreasonable collection contracts and for exemplary damages is unliquidated, and the Court having heard the evidence on the liquidated damages, and having heard the pleadings and arguments of counsel for Plaintiff, and such additional considerations and findings as were authorized by law having been had and made, and the Court being of the opinion that judgment should be rendered against said defaulting Defendant, as follows:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that

Plaintiff's cause of action against Virgil C. Moore is hereby severed completely from all other causes of action herein, and shall hereafter be a separate cause entitled No. 41754-2-A, styled Marie E. Mathis v. Virgil C. Moore, whereas Plaintiff's causes of action against all other Defendants shall be a separate cause, number 41754-A, styled Marie E. Mathis v. Signature Loans, Inc., et al;

"IT IS FURTHER ORDERED that the motion of Plaintiff for judgment against Defendant, Virgil C. Moore, in No. 41754-2-A is granted, and that Plaintiff, Marie E. Mathis, do have and recover from Defendant, Virgil C. Moore, the sum of $271.20 usury double damages, the sum of $2500.00, actual damages, and the sum of $2000.00 exemplary damages, with interest on all said sums at the rate of 6% per annum from the date of this judgment, and that the said Defendant, Virgil C. Moore shall pay one fourth of the costs of court in Cause No. 41754-A accrued up to the time of this judgment, and an additional sum, comprising all costs in this Cause No. 41754-2-A accrued or to accrue at any time.

"As indicated by the above severance, this judgment is without prejudice to Plaintiff's causes of action against all other persons, companies and corporations against whom no recovery is herein awarded.

"All relief not specifically allowed against the Defendant in this severed cause which is not otherwise disposed of herein is hereby denied, and this judgment is final as to this severed cause, No. 41754-2-A.

"Let execution issue on this judgment.

"SIGNED this 23 day of June, 1961.

"SARAH T. HUGHES

"JUDGE."

Appellant says this judgment is interlocutory, notwithstanding its recitals to the contrary, because Texas R.C.P. 240 only authorizes an interlocutory order, and further, that it fails to dispose of all issues and all parties, as required by Texas R.C.P. 301. He argues that under Rule 301 the judgment cannot be final because it fails to dispose of all parties; that the judgment had to be rendered in case number 41754-A, because that was the case wherein the default occurred; that there is nothing in the record to justify a default judgment in case number 41754-2-A, and that there was no final judgment in number 41754-A because many parties and issues remain undisposed of in that case.

Appellant further contends that assuming a severance was accomplished, nevertheless, the default judgment in the severed case is void because it does not conform to the nature of the case pleaded, as required by Rule 301. He says that orders severing causes should direct that they be docketed under new numbers and the court should instruct the clerk to transfer to the new case the original, or copies, of the pleadings. Appellant says there was no order of severance in either case; that there was a failure to transfer any pleadings to the new case; that no evidence was heard in the severed case and, therefore, the judgment is void for lack of pleadings and evidence.

Severance of the cause of action against Moore from that against the remaining defendants was within the power and jurisdiction of the court. Even if such action were erroneous, the judgment was final and appealable. After learning of the judgment ...