Rotello v. State

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

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 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, Texas Rules of Civil Procedure, requiring cases to be placed on a trial calendar in other classes of courts, and was an erroneous and arbitrary use of power requiring the granting of a new trial.

'State v. Perkins, supra, involved a construction of Rules 245, 246 and 247 of the Rules of Civil Procedure, Rules governing the setting and trial of cases in district courts of noncontinuous terms . They differ only slightly from Rule 330(b) which has application to district courts having continuous terms. . . .

'We hold that the default judgment was void. Generally speaking, a judgment rendered by a legally constituted and organized court having jurisdiction over the subject matter of and the parties to a suit will be held valid, Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876, 877; Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810, 812, unless the particular judgment is one which the court had no power to render. State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272; Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 66 A.L.R. 916; State Board of Insurance v. Betts, Tex., 158 Tex. 612, 315 S.W.2d 279. Judgments are void for lack of power in courts to render them when they are rendered contrary to constitutional or valid statutory prohibition or outside limiting constitutional or statutory authority. State v. Ferguson, supra; Cline v. Niblo, supra; State Board of Insurance v. Betts, supra. They are not void when rendered in violation of statutory provision which is merely directory, Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66; 25 Tex.Jur. 735--736, Judgments, § 276, or for purely procedural irregularity. 25 Tex.Jur. 809--812, Judgments, § 308. But here, the judgment is subject to twin vices. Our Rules of Procedure have the same force and effect as statutes. If a statute had provided that all contested cases should, on appearance day, be set for trial and that no default judgment could be rendered in such a case until the day of its setting, we would not hesitate to declare void a judgment rendered in violation of the statute. That, in effect, is what Rule 330(b) provides. It is the purpose of the Rule to provide a party to a contested case with his day in court. . . ..'

The Clerk of the District Court of Brazos County, Texas, certified that no Clerk's Docket is maintained in the 85th Judicial District Court separate and apart from the Court's Docket. The docket sheet for Cause No. 18,008, Tom Rotello, et al v. State of Texas, shows no order of the court other than the Order of Dismissal. It appears, therefore, that the case had not been placed on the trial docket at the time it was dismissed.

The Clerk included in the transcript of this case certain papers requested by the parties which were not filed in the case at the time this appeal was perfected. Certain other papers not on file at that time were included by order of the trial judge.

Rule 376, Tex.Rules of Civil Procedure, provides:

'The clerk of the trial court, under written direction of appellant, shall prepare . . . a true copy of the proceedings in the trial court, and . . . shall include the following: the material...