Rotello v. State, 16033

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: COLEMAN
• Citation: 492 S.W.2d 347
• Parties: Tom ROTELLO et al., Appellants, v. The STATE of Texas et al., Appellees. (1st Dist.)
• Docket Number: No. 16033,16033
• Decision Date: 01 March 1973

Page 347

492 S.W.2d 347 Tom ROTELLO et al., Appellants,
v.
The STATE of Texas et al., Appellees. No. 16033. Court of Civil Appeals of Texas,
Houston (1st Dist.). March 1, 1973.
Rehearing Denied March 29, 1973.

Sears & Burns, Houston, for appellants; C . Charles Dippel, Houston, of counsel.

Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Alfred L. Walker, Executive Asst. Atty. Gen., Watson C. Arnold, Woodrow Curtis, C. W. Pearcy, Alvin K. James, Asst. Attys. Gen., for appellees.

COLEMAN, Justice.

This is an appeal by writ of error from a judgment dismissing appellants' suit for want of prosecution.

Appellants brought suit for injunction and damages against appellees on August 7, 1969. The defendants answered. No further action in the case is shown by the pleadings or docket sheet until January 4, 1972, when the trial judge noted on the

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docket sheet that the case was dismissed for want of prosecution. The record includes an order filed on January 12, 1972, stating:

'On this the 4th day of January, 1972, it is ordered by the court that the following numbered and entitled civil cases be dismissed for want of prosecution as follows, to wit:

There follows two hundred and fifty cases described by style and case number, including Cause No. 18,008, entitled Tom Rotello, et al vs. State of Texas. The order was signed by the Judge of the 85th Judicial District Court, Brazos County, Texas.

The judgment does not show by recital that this case was set down for trial, or that it was placed on a dismissal docket by the trial judge, or that notice of any such action was given to appellants or their attorneys. There was nothing in the record on the date this appeal was perfected reflecting that appellants were afforded an opportunity to explain the delay in bringing the case to trial prior to its dismissal from the docket. Due process requires that adequate notice of such a hearing be given appellants before the judgment was rendered dismissing their suit. Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942); Olschewske v. Priester, 276 S.W. 647 (Tex.Com.App.1925); United Gas Public Service Co. v. State of Texas, 303 U.S. 123, 58 S.Ct. 483, 82 L.Ed. 702 (1938); Brotherhood of Railroad Trainmen v. Price, 108 S.W.2d 239 (Tex.Civ.App.-Galveston 1937, err. dism'd); Johnson v. Williams, 109 S.W.2d 213 (Tex.Civ.App.-Dallas 1937); Head v. Roberts, 291 S.W.2d 483 (Tex.Civ.App.--Ft. Worth 1956).

In a direct attack on a judgment by writ of error, it is not required that the record show the judgment to be void, but it must show error. The question is whether the record must affirmatively show that notice was given, or whether such notice may be presumed. In McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965), the court said: '. . . While ordinarily presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), no such presumptions are made in a direct attack upon a default judgment . . .'

In State v. Perkins, 143 Tex. 386, 185 S.W.2d 975 (1945), the court said:

'The question for decision involves more than the mere violation of rules of practice and procedure in civil cases. It involves the right of a plaintiff (whether state or individual) who has alleged and filed a cause of action, not to be deprived of an opportunity to try his case. The rules and established practice thereunder are but the means of effectuating in orderly fashion the rights of litigants . Rule 245 provides for the placing of actions upon a trial calendar. Rule 246 provides generally for setting same and giving notice thereof. Rule 247 provides, among other things, that 'no cause which has been set upon the trial docket * * * shall be taken from the trial docket for the date set Except by agreement of the parties or for good cause Upon motion and notice to the opposing party.'

'The state had not failed to prosecute the case at the time it was dismissed. The case was not on the trial docket. . . . his action in dismissing the cause, together with his refusal to reinstate same, effectively deprived plaintiff of an opportunity to try its case. The affirmance of the trial court's judgment by the Court of Civil Appeals was reversible error . . .'

In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959), the court said:

'In State v. Perkins, 143 Tex. 386, 185 S.W.2d 975, we held that a default judgment of dismissal of a case on appearance day was a violation of Rule 245,

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Texas Rules of Civil...