Smith v. Ellis
| Decision Date | 31 December 1958 |
| Docket Number | No. 3606,3606 |
| Citation | 319 S.W.2d 745 |
| Parties | Rosa Roderiquez SMITH, Appellant, v. Wiley Edgar ELLIS et ux., Appellees. |
| Court | Texas Court of Appeals |
Goodrich & Neathery, Dallas, for appellant.
Robert M. Mahanay, Cleburne, for appellees.
This is an appeal from a summary judgment rendered under Rule 166-A, Texas Rules of Civil Procedure, that the plaintiff take nothing. Plaintiff, suit was in the nature of a bill of review to set aside the adoption of two minor children by the defendants. The plaintiff is the mother of the minor children in question and is a resident of Mexicali, Baja California, Mexico. Her husband is dead. The defendant Mildred Ellis is the stepdaughter of plaintiff and the half sister of the two children; Wiley Ellis is the husband of Mildred Ellis. Plaintiff alleged in her bill of review, which was filed on 5 June 1958, that on 4 November 1957 defendants secured a judgment of adoption in Johnson County for the two children of plaintiff; that such judgment was obtained by fraud, deceit, and chicanery practiced on plaintiff by the defendants; that she was not served with process; never executed a valid waiver of citation; was unaware of the adoption proceedings; had notified defendants in writing, and by long distance telephone that she did not want the children adopted, and tht she objected to such adoption by defendants herein; that such was long before the proceedings were adjudicated; that she did not learn until long after the judgment of adoption was entered that such proceedings had been had. Plaintiff alleged she had never abandoned her children and was capable of taking care of and rearing them; that she did not want the children adopted; that she had a meritorious defense to such adoption proceedings; and that the adoption judgment was the result of the fraud and deceit perpetrated upon her by the defendants. She prayed that the adoption proceeding be set aside and that she be awarded her children.
Defendants answered by exceptions and denials, and alleged that the plaintiff had sent the children to live with them; that plaintiff had abandoned her children; and that service of process was not necessary in the adoption case because plaintiff had executed her written consent to the adoption. Defendants further alleged that plaintiff had not exercised diligence to set aside the adoption decree.
Thereafter defendants filed motion for summary judgment that plaintiff's bill of review be denied because plaintiff, through her attorney, knew of the adoption of 4 November 1957, on or before 10 April 1958, and that plaintiff had a remedy at law by way of writ of error (not having participated in the trial) for six months after 4 November 1957, or until 4 May 1958; and that in not having pursued her remedy at law, she could not invoke the jurisdiction and assistance of the courts of equity by way of bill of review. Attached to such motion for summary judgment is a copy of the judgment of adoption dated 4 November 1957, and the affidavit of the Deputy District Clerk to the effect that on 10 April 1958 she gave plaintiff's attorney a certified copy of the 4 November 1957 judgment.
Plaintiff answered the motion for summary judgment, contending such motion and affidavit were insufficient to support a summary judgment, and further that the 4 November 1957 judgment of adoption was obtained by fraud, and that there were genuine issues of material fact made by the pleadings to be adjudicated, which required a trial on the merits.
The Trial Court, on 11 July 1958, entered summary judgment for the defendants and dismissed plaintiffs bill of review for want of equity 'because the record shows on its face that she failed to exhaust her remedy at law before filing such petition for bill of review.'
Plaintiff made a motion for new trial, in which she again urged fraud on the part of defendants in obtaining the judgment, and that an issue of fact was made as to revocation of the consent to adopt signed by plaintiff. This motion was not granted by the Trial Court.
The Trial Court, upon request, filed Findings of Fact and Conclusions of Law, summarized as follows:
Findings of Fact
1. The judgment of adoption was entered on 4 November 1957, by which defendants adopted the two children.
2. Plaintiff or her attorney knew of the entry of such judgment before the expiration of six months from the date of such judgment.
3. Horace G. Goodrich, attorney for plaintiff, discovered the existence of the 4 November 1957 adoption judgment, on or before 10 April 1958, less than six months after the entry of such judgment.
4. No action was taken by plaintiff or her attorney by way of either appeal, or writ of error, to attack said judgment of adoption before the expiration of six months from its entry.
1. Plaintiff had available to her a remedy at law, to-wit, the remedy of writ of error, but failed to exercise said remedy even though she had notice of the judgment of adoption before the expiration of six months from the entry of said judgment of adoption.
2. No genuine issue of any material fact was necessary to be decided by the court in order to decide the merits of the motion for summary judgment.
3. Because of the failure of plaintiff to exercise her remedy at law within six months from the date of the judgment of adoption, she is not entitled to the equitable bill of review.
Plaintiff appeals, contending: 1) The Trial Court erred in rendering summary judgment, because there was a controverted issue of fact to be heard; 2) the Trial Court committed fundamental error in his Findings of Fact and Conclusions of Law wherein he held that plaintiff had an adequate remedy at law which she failed to avail herself of; 3) the Trial Court committed fundamental error in his Findings of Fact and Conclusions of Law in holding that plaintiff was not entitled to a bill of review.
Defendant adopted the two children of plaintiff on 4 November 1957. No service was had upon plaintiff but there was filed in such adoption case a consent to adopt the children which had been signed and sworn to by plaintiff. Plaintiff's attorney, on 10 April 1958, secured a certified copy of the 4 November 1957 adoption decree from the District Clerk of Johnson County. Plaintiff then on 5 June 1958, some 56 days after her attorney learned that the judgment of adoption had been entered, filed a bill of review to set aside the adoption decree, alleging as grounds therefor that she was not served with process; that she had in writing and by telephone objected to such adoption by defendants prior to the adoption; that she told defendant that she did not want her children adopted; that she had a meritorious defense to the adoption proceeding and was able to care for her children, who had temporarily been placed in their half sister defendant's home; that the judgment of adoption was obtained by fraud.
Upon the foregoing showing, the Trial Court rendered summary judgment for defendants on the ground that plaintiff had a remedy at law, to-wit, to apply for a writ of error from the judgment of the Trial Court, for a period of six months after rendition of the judgment, to-wit, 4 November 1957; that she learned through her attorney on 10 April 1958 of the adoption decree and that if she did not seek the writ of error by 4 May 1958 (six months after 4 November 1958) that she, in not pursuing her legal remedy is as a matter of law precluded from pursuing the equitable remedy of a bill of review.
A judgment cannot be set aside by bill of review unless it be shown that:
1) There existed a meritorious defense to the cause of action. Barrow, Wade, Guthrie & Co. v. Stroud,...
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...the existence of a genuine issue as to any material fact must be resolved against the party moving for summary judgment. Smith v. Ellis, Tex.Civ.App., 319 S.W.2d 745; Archer v. Skelly Oil Co., Tex.Civ.App., 314 S.W.2d 655, ref. n. r. e. 159 Tex. 154, 317 S.W.2d 47; Trammell v. Trammell, Tex......
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Swenson v. Swenson, 33
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