Roberts v. Mullen

• Decision Date: 19 May 1967
• Docket Number: No. 16899,16899
• Citation: 417 S.W.2d 74
• Parties: J. C. ROBERTS, Petitioner, v. John W. MULLEN et al., Respondents. . Dallas
• Court: Texas Court of Appeals

Page 74

417 S.W.2d 74

J. C. ROBERTS, Petitioner, v. John W. MULLEN et al., Respondents.

No. 16899.

Court of Civil Appeals of Texas.

Dallas.

May 19, 1967.

Rehearing Denied June 23, 1967.

Wm. Andress, Jr., of Andress, Woodgate & Condos, Dallas, for petitioner.

Lancaster Smith, Harvey L. Davis, Dallas, for respondents.

BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

The petitioner, J. C. Roberts, appeals by writ of error from a judgment rendered against him as the result of a trial in which neither he nor his attorney participated, although his former attorney had filed an answer for him.

The respondents have moved for a dismissal of the appeal on the grounds, (1) that no error appears on the face of the record; (2) that petitioner failed to prove that his failure to be represented at the trial was not due to his own fault or negligence, and (3) that petitioner failed to prove that he had a meritorious defense to the cause of action asserted against him.

Under the statutes authorizing appeal by writ of error, ¹ the complaining party is accorded a review in the Court of Civil Appeals of the same scope as an appeal. Ward v. Scarborough, Tex.Com.App., 236 S.W. 441; Golden Rod Oil Co. No. One v. Golden West Oil Co. No. One, Tex.Com.App., 293 S.W. 167. 'Either remedy brings before the appellate court thw whole case for revision of all rulings of the trial court properly assigned as error.' 3 Tex.Jur.2d, Appeal and Error--Civil, § 11, p. 285.

The distinction between the remedies of appeal, writ of error and bill of review is well explained in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710--711. After explaining the right of appeal of one who is before the court and learns of the judgment within thirty days after its rendition, the Court, speaking through Chief Justice Calvert, said: 'If he does not learn of the judgment within 30 days after its rendition but does learn of it within six months, and the invalidity of the judgment is disclosed by the papers on file in the case, he may obtain relief by prosecuting writ of error to a Court of Civil Appeals.' 'The papers on file in the case' before us disclose a judgment rendered upon a trial before the court without a jury, although they also disclose a demand for jury trial and payment of the jury fee. Petitioner is entitled to have this matter reviewed on appeal.

Respondents rely upon the recent opinion of the Supreme Court in Ivy v. Carrell, Tex.Sup.1966, 407 S.W.2d 212, as holding that no attack upon a default judgment can properly be entertained by any court unless and until the defaulting defendant first shows that his failure to appear and defend was not due to his own negligence and that he has a meritorious defense. That opinion does make it quite clear that such is the rule to be applied when the defendant seeks to set aside the default judgment In the trial court, either by motion for new trial or by bill of review, and whether the defendant has failed to answer or make any appearance, or whether, having filed an answer, he does not appear, either in person or by attorney, at the trial. But it does not hold, and no other case coming to our attention has held, that such a showing is a Sine qua non to a review of the trial court proceedings in the appellate court, to which the case has been properly and timely brought for review. We hold that no such showing is required.

The motion to dismiss is overruled.

The respondents were two individuals and two corporations who sued petitioner for damages on account of alleged fraud and breach of contract. Petitioner was duly served and his attorney, Mr. Barton E . Bernstein, filed a general denial for him. The respondents demanded a jury and paid the jury fee. The case was thereafter regularly set for trial on the jury docket for the week of February 14, 1966. On March 17, 1966, Mr. Bernstein filed a motion for leave to withdraw as petitioner's attorney and an order granting such leave was entered the same day, which was a Thursday. On the following Monday, March 21, 1966, the case was tried and the judgment signed. It recites that the defendant, 'though duly and regularly advised of said hearing and the time and place thereof according to law, appeared not, but wholly made default, and the said Defendant has wholly neglected and/or refused to join issue with Plaintiffs under the direction of the Court within the time prescribed for them to do so, and in this regard have additionally made default; and the Court, after consideration of the evidence, the exhibits, and argument of counsel, is of the opinion that judgment should be rendered for Plaintiffs (naming the four respondents) in the sum of $10,446.25,' and that the plaintiffs have judgment in that amount.

The judgment contains no reference to the demand for a jury, and no jury was empaneled. So far as the record shows, the trial judge's attention was not directed to the fact that a jury had been demanded and the jury fee paid.

By his first point of error on appeal petitioner asserts that the trial court erred in trying the case and rendering judgment without the aid of a jury. It is well settled that when one party demands a trial by jury and pays the required jury fee, the right thus secured to him inures to all other parties to the suit. White Motor Co. v. Loden, Tex.Civ.App., 373 S.W.2d 863, 865, no wr. hist.; Finnell v. Byrne, Tex.Civ.App., 7 S.W.2d 139, no wr. hist.

It is also well etablished that the absence of a party or his attorney from the trial does not constitute a waiver, or impair that party's right to have the issues in the case tried by jury. Barker v. Kidd, Tex.Civ.App., 357 S.W.2d 490, no wr. hist.; Panhandle & S.F . Ry. Co. v. Lawless, Tex.Civ.App., 94 S.W.2d 213, no wr. hist.; Finnell v. Byrne, supra; Jerrell v. Jerrell, Tex.Civ.App., 409 S.W.2d 885.

The respondents argue that the petitioner should not be heard to complain of being deprived of a jury trial because he fails to show (1) that his lack of representation at the trial was not due to his own fault or negligence, and (2) that he had a meritorious defense. His right to a jury trial, at least as to the amount of damages due on the unliquidated demand, and the denial by the court of that right, appear on the face of the record. His general denial raises a 'meritorious defense' as to that issue; and he was entitled to have a jury ascertain the amount...