Pearl Assur. Co. v. Williams

• Decision Date: 04 December 1942
• Docket Number: No. 14460.,14460.
• Citation: 167 S.W.2d 808
• Parties: PEARL ASSUR. CO., Ltd., v. WILLIAMS.
• Court: Texas Court of Appeals

Page 808

167 S.W.2d 808

PEARL ASSUR. CO., Ltd., v. WILLIAMS.

No. 14460.

Court of Civil Appeals of Texas. Fort Worth.

December 4, 1942.

Rehearing Denied January 22, 1943.

Appeal from District Court, Denton County; Ben W. Boyd, Judge.

Proceeding for a bill of review by the Pearl Assurance Company, Limited, against Fred C. Williams to set aside a judgment for respondent. From a judgment sustaining special exceptions to the petition, petitioner appeals.

Reversed and remanded.

Richard Owens, of Fort Worth, for appellant.

Earl L. Coleman, of Denton, for appellee.

SPEER, Justice.

This is an appeal by Pearl Assurance Company, Ltd., hereinafter called appellant, from a judgment sustaining special exceptions to its petition for Bill of Review of a judgment previously entered in cause No. 17273 in District Court of Denton County, wherein Fred C. Williams, hereinafter called appellee, had sued it on a policy of fire insurance.

Appellee instituted the original suit, and caused process to issue on March 26, 1942; service on appellant was had on March 30, 1942; the term of court convened on March 2nd and ended on April 25, 1942. Judgment was rendered in favor of appellee for $1,075 on April 21st, as the full value of the automobile alleged to have been destroyed by fire.

Summarizing appellant's petition for the equitable relief sought, allegations were made to the effect that promptly after process was served on it, Richard Owens, an attorney at Fort Worth, Texas, was employed to look after its interests in relation to said suit and that on April 11th he filed a plea in abatement and subject thereto, an answer to the merits, sending to Earl Coleman, attorney for appellee, a copy thereof, and advising Coleman he would see him within a few days and discuss the case. That on April 20th, at the request of Coleman (appellee's attorney), the court set cause No. 17273 down for trial at nine o'clock the next day, April 21st, 1942; that no notice of such setting was given to said Owens, attorney for appellant, either by the clerk, the Court or the attorney for appellee; that Owens had no notice of such setting from any other source and did not know that judgment was entered for appellee on April 21st, until after the court had adjourned on April 25th, and too late to file motion for new trial; that appeal or writ of error from said judgment would not be available to appellant for the reason the record would not reflect the errors committed by the trial court, nor the meritorious defense pleaded by it in its bill of review.

It was averred that the judgment entered was void for the reason it was rendered prematurely, in that (1) because citation was served on March 30th, and the 20th day thereafter fell on Sunday, the following day, Monday, April 20th, was included in said 20-day period, and therefore appearance day for appellant would have been Monday, April 27th, if the court had continued in session, but having adjourned on April 25th, its appearance day was June 8, 1942, the first Monday at the succeeding term; (2) that if appellant be mistaken in the above allegation, then such setting of the case on April 20th for trial the next day was not made at a regular appearance day for appellant nor under any rule of said court, but at the request of appellee's attorney, and was tried by the court in the absence of appellant and its attorney when said attorney had not been given any notice of such setting, as required by law. It was further alleged that appellee's attorney knew the said Owens represented appellant in said cause and had the court set the case for April 21st, gave no notice to said Owens of such setting, knowing that Owens did not know of the setting and that he could not have reached Denton, the place of trial, in time to have participated therein if he had been notified after such setting; that said acts of Coleman, attorney for appellee, were deliberate on his part, for the sole purpose of fraudulently preventing the said Owens from being present and participating in said trial and presenting appellant's meritorious defenses and to procure, as he did, an unconscionable and inequitable judgment against appellant. There were further allegations that no default judgment should have been rendered against appellant on April 21st, because it had already filed an answer on April 11th. That neither appellant nor its attorney was guilty of negligence in failing to learn of the setting on April 21st, made at the request of appellee's attorney.

The petition alleges a meritorious defense to a substantial part of appellee's cause of action, in that the policy of insurance called for payment of the value of the automobile if destroyed by fire, but appellant alleged that the car had been badly wrecked and materially depreciated in value shortly before the fire, and that at the time of the fire it was reasonably worth only $455.91, instead of $1,075, the amount for which judgment had been rendered. That because of the fraud perpetrated upon it by the attorney for appellee, it was prevented from presenting its said meritorious defenses. It prayed that the judgment theretofore entered be set aside and the case set for trial at the following June term of court when it could and would present its said defenses.

Upon a hearing, the trial court sustained 17 special exceptions to the petition. Appellant declined to amend, and the case was dismissed, from which order appellant has perfected this appeal.

Eight points or propositions are urged for reversal. Nos. 1 and 2 are to the effect that the judgment attacked is void because the case was set for trial and judgment entered before appearance day for appellant, and error of the court in sustaining special exceptions to appellant's pleadings to that effect.

This appeal involves constructions of several of our Rules of Civil Procedure and for obvious reasons, we deem it the duty of the appellate courts to construe them at their earliest opportunity. Not especially applicable to the case before us, but generally, it may be said that the Bench and Bar may not lightly treat these Rules as "merely procedural matters or technicalities", as contradistinguished from statutory laws or well settled principles of equity. These Rules have the dignity of statutory provisions and must be observed as such. Like statutes, they must be carefully interpreted and applied. It is not optional with trial or appellate courts to disregard them because they do not meet the approval of such courts. They are designed to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. Little less can be said of any wholesome law.

We overrule appellant's points 1 and 2, by which it is urged that appearance day for it was June 8, 1942, which was the first Monday of the June Term after adjournment of the March Term on April 25th. We shall presently state our reasons for this conclusion.

The citation was served on appellant on March 30th, and it is argued that because the 20th day thereafter fell on Sunday, the following day (Monday, April 20th) was included in that 20-day period before time started to run in which it should answer before appearance day, which would be the next Monday, if the court had not then ended, and if ended, then "the first day of the next term is appearance day as to him".

Rule 101 provides, among other things, for the requisites of a citation, which commands a defendant "to appear and answer the plaintiff's petition at or before 10 o'clock a. m. of the Monday next after the expiration of 20 days from the date of service thereof * * *." Under these points, we are to determine not a period of time of 20 days elapsing after service of citation, but the period of time in which a defendant must appear and answer; in other words to determine what is appearance date for the defendant. Under the provisions of this rule it would appear to be a simple matter to count 20 days from date of service (not including that day) and observe by the calendar the following Monday, if the court term had not ended. But, as in this case, where the term ended in less than a week after the expiration of 20 days after service, a complication may arise. If appearance day based upon a proper calculation should fall on a Monday after adjournment of the term, then, under Rule 237, the first Monday in the next term would be appearance day for the defendant.

Appellant relies upon the provisions of Rule 4 for a computation of both the period included in the first 20 days after service and the fixing of its appearance day. Rule 4 provides: "In computing any period of time prescribed or allowed by these rules * * * the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday." It is contended by appellant that because the 20th day after the service of process on it on March 30th fell on Sunday, April 19th, that period under Rule 4 did not end until Monday, April 20th, it not being a holiday. By...