Rosser v. Hanks

• Decision Date: 09 May 1963
• Docket Number: No. 6569,6569
• Citation: 369 S.W.2d 643
• Parties: Joseph N. ROSSER, Appellant, v. Jerry HANKS, Appellee.
• Court: Texas Court of Appeals

Page 643

369 S.W.2d 643

Joseph N. ROSSER, Appellant, v. Jerry HANKS, Appellee.

No. 6569.

Court of Civil Appeals of Texas, Beaumont.

May 9, 1963.

Rehearing Denied June 26, 1963.

Fred A. Carver, Beaumont, for appellant.

A. A. DeLee, Port Arthur, and on motion for rehearing Stephenson, Stephenson & Thompson, Orange, for appellee.

HIGHTOWER, Chief Justice.

This is an appeal from a judgment of the district court sustaining appellee's petition for Bill of Review, setting aside a default judgment previously entered against him and entering judgment in appellee's favor on his cross-action in the sum of $1,000.00 against appellant.

The default judgment was the result of a suit brought upon an oral contract for services rendered by appellant for appellee. In that suit service of process was had upon appellee on April 24, 1961. The first Monday after the expiration of 20 days fell upon May 16, 1961. On May 25, 1961, no answer having been filed by appellee, a default judgment was taken by appellant in the amount of $14,400.00. On May 26, 1961, appellee belatedly filed his answer. Thereafter, on July 19, 1961, appellee filed his petition for Bill of Review to set aside the default judgment. On July 28, 1961, the court entertained a hearing on the petition for Bill of Review and on September 15th of said year said court entered its judgment setting aside the default judgment previously entered on May 25, 1961, as aforesaid. Trial on the merits was had February 20, 1962, and on March 1, 1962, the court reaffirmed its judgment of September 15th and rendered judgment in favor of appellee on its cross-action as aforesaid.

The sole question posed is whether or not 'accident or mistake' prevented appellee from timely filing answer prior to the default judgment. On such question, we quote the Supreme Court in Johnson et al. v. Templeton, Adm'r., 60 Tex. 238:

'This court has on more than one occasion laid down with considerable strictness the rules which should govern the action of the district court in cases where a new trial is sought after the expiration of the term.

'Where the final judgment of a court of competent jurisdiction has been once solemnly pronounced, it ought not to be lightly disturbed. It is alkie the interest of individual suitors and of the public at large that there should be at some period an end put to litigation.

'For these, and many other good reasons, though the power of courts of equity to restrain final judgments and to entertain bills for new trial in such cases is well established, it never has at any time been regarded as a favorite one with chancellors.

'Such bills seeking relief from final judgments, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds upon which interference will be allowed are, confessedly, narrow and restricted.

'It will not be sufficient to show that injustice has been done by the judgment sought to be enjoined. It must further distrinctly and clearly appear that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity in his behalf at such a stage of the case. High on Inj. (2d ed.), secs. 112, 113; Duncan v. Lyon, 3 Johns.Ch., 356; Brown v. Hurd, 56 Ill., 317. * * *' (Emphasis added.)

The following pertinent principles of law applicable to proceedings of this nature are from 4 McDonald, Tex.Civ.Prac. with references to a wealth of cases there collated supporting the same:

"Mistake', as the term is here used, means a mutual error of the parties, or a mistake of the complaint coupled with an act of the opponent which brought it about, relating to matters of fact incident to the trial of the former action. 'Accident' implies a similar joint responsibility or freedom from fault, by both parties through which, by mischance, the complainant failed to urge his position in the former action. [pp. 1495, 1496, note 17.] * * * An injustice in the former decree is not enough, without more: the party's failure to present his claim or defense must not have resulted from neglect of himself, his agent, or his counsel. [p. 1498, note 28.] The standard of care is 'such as prudent and careful men would ordinarily use in their own cases of equal importance.' [p. 1498, note 29.]' And see 34 Tex.Jur.2d, Judgments, Sec. 188.

The facts upon which appellee relies for establishing a mistake within the meaning of these principles of law are:

He was working as a pharmacist on the day of the service of citation. On that day, immediately after having been served the citation, he telephoned Mr. Thomas, an attorney at law and business associate of his, and informed him of the fact. Mr. Thomas advised him to bring the papers to his office as soon as possible so that he might discuss the matter with him. He did not do this. He placed these papers on his prescription counter or desk where they remained for three days, after which he never saw them again. The substance of appellee's testimony is that he simply misplaced them and thereafter forgot them. It is very doubtful from his testimony that he even read the citation. However, although he realized that he had only a limited time in which to file answer in the matter, he stated that he was of the opinion that he had more time than it turned out that he did have. On the 24th day of May, 1961, Mr. Carver, attorney for appellant, chanced to meet Mr. Thomas in the law offices of a fellow attorney and Mr. Carver advised Mr. Thomas that he was getting ready to take a default judgment against appellee. Whereupon, Mr. Thomas advised Mr. Carver that he did not represent appellee but, nevertheless, Mr. Thomas advised appellee on the evening of the same day that a default judgment was about to be taken against him and that he had better employ an attorney to file an answer in the case. Whereupon, Mr. DeLee entered the picture on the 25th day of May, 1961, as attorney for appellee for such purpose. Late in the afternoon of that day he consulted with appellee and phoned the district clerk's office and was advised that no judgment had yet been taken in the matter. Upon appellee's return to his office the next morning to sign the answer which Mr. DeLee had prepared, again via telephone these parties were advised by the district clerk's office that no judgment had been taken. Upon delivery and filing of this answer in the district clerk's office the same morning appellee was again advised that no judgment had been taken in the matter.

These latter facts relating to the...