Sanders v. Harder
| Decision Date | 08 February 1950 |
| Docket Number | No. A-2403,A-2403 |
| Citation | 148 Tex. 593,227 S.W.2d 206 |
| Parties | SANDERS et al. v. HARDER. |
| Court | Texas Supreme Court |
C. B. Bunkley, Jr., Dallas, W. J. Durham, Dallas, for petitioners.
J. C. Dorbandt, Tyler, for respondent.
This suit had its origin in a motion filed by respondent, Harder, to revive a default judgment against petitioners, Jim Sanders and wife, Jessie Sanders, so that writs of possession and execution might issue thereon. The judgment sought to be revived was rendered on June 17, 1941, in an action of trespass to try title. It awarded to respondent the title to an 86.27-acre tract of land in Smith County. In answer to the motion to revive, petitioners alleged that no legal service of citation was had upon them before the rendition of the judgment; that they had no knowledge, directly or indirectly, of the filing of the suit until long after the judgment was rendered; and that they had a meritorious defense to the cause of action alleged by the respondent in that case. They sought no affirmative relief. Under the holding in the recent case of Cox v. Nelson, Tex.Civ.App., 223 S.W.2d 84, error refused, it appears that the judgment had not become dormant, but since the case has been tried and appealed on the theory that it was dormant, and since the judgments below decreed that it was valid notwithstanding the verdict set out below and ordered that writ of possession issue, we shall decide the questions of law presented by the appeal.
The case was submitted to the jury on two special issues. Issue No. 1 was as follows: 'Do you find from a preponderance of the evidence that citation was not served on Jim Sanders on or about May 29, 1941, in the case of O. Z. Harder vs Jim Sanders et ux #10,481-A?' To that issue the jury answered; 'Citation was not served on Jim Sanders.' The other special issue made the same inquiry as to Jessie Sanders, and the jury's answer was the same as that to issue No. 1.
After the verdict was returned, respondent filed a motion for judgment non obstante veredicto upon two grounds. The first ground was that a request for admissions under Texas Rule of Civil Procedure No. 169 had been served upon the attorney for petitioners; that petitioners did not deliver to respondent or to his attorney of record a sworn statement denying any of the matters inquired about in the request or setting forth why they could not either admit or deny the same; wherefore, it was urged they had made judicial admissions binding upon them, and the court should not have admitted any evidence contradicting the facts admitted.
The second ground was that the testimony of petitioners denying that citation was served upon them was not corroborated by any other witness or fact or circumstance in the record; that the testimony of defendants that they had not been served is not sufficient to impeach an officer's return; and that there being no evidence other than the testimony of petitioners, no issue of fact was raised for the jury's determination.
The court overruled the first ground of the motion but sustained the second ground, and accordingly rendered judgment against petitioners. The Court of Civil Appeals affirmed the case, one of the justices dissenting. 223 S.W.2d 61.
The court did not err in overruling the first ground of the motion. On June 28, 1948, respondent served a request for admissions on petitioners' attorney, affirmative answers to which would have proved respondent's case. On July 7, within ten days after the request was served, petitioners replied thereto, denying under oath all the matters inquired about. Their reply was filed with the District Clerk of Smith County, where the case was pending, but respondent did not learn that it had been filed until the case was called for trial. When he learned that it had been filed with the clerk, he did not request a continuance but stated in open court that he was not surprised that petitioners claimed that they were not served.
Rule 169 is a part of our pre-trial procedure. Its source is Federal Rule of Civil Procedure 36, 28 U.S.C.A., with minor textual changes. The relevant portions thereof are:
An amendment of this rule will become effective March 1, 1950, but we are not concerned with the amendment here.
The primary purpose of the rule is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense. When the language of the rule is considered in the light of its purpose, there is no doubt that some discretion is lodged in the trial court in its enforcement. The only particular in which petitioners failed to comply literally with the rule is that they filed their reply with the District Clerk instead of the respondent. Had they requested additional time within which to file it with respondent and given him notice thereof, then by the express language of the rule the court could have extended the time. In effect, the reply was delivered to respondent on the day of the trial. A motion at that time to extend the time within which to reply was unnecessary, for it was already delivered to respondent and he had notice of that fact. The court qualified the respondent's bill of exceptions by stating that he did not ask for a continuance. Had a continuance been requested and granted, there clearly would have been a substantial compliance with the rule. Since respondent did not request a continuance, but instead procured the attendance of the deputy who made the return and used him as a witness on the issue of service, there was nonetheless a substantial compliance therewith and the trial court did not err in so ruling.
The ground of the motion for judgment non obstante veredicto which was...
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CHAPTER 10 - 10-2 Requests for Admission in General
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