Smith v. United Gas Pipe Line Co.

• Decision Date: 08 March 1950
• Docket Number: No. A-2345,A-2345
• Citation: 149 Tex. 69,228 S.W.2d 139
• Parties: SMITH et al. v. UNITED GAS PIPE LINE CO.
• Court: Texas Supreme Court

Page 139

228 S.W.2d 139

149 Tex. 69

SMITH et al. v. UNITED GAS PIPE LINE CO.

No. A-2345.

Supreme Court of Texas.

March 8, 1950.

Rehearing Denied April 12, 1950.

Jones, Jones & Brian, Marshall, Franklin Jones, Marshall, Clifford Roe, Carthage, for Petitioners.

Long & Strong, Carthage, Vinson, Elkins, Weems & Francis, Houston, Earl A Brown Jr., and Thomas Fletcher, of Houston, for Respondent.

GARWOOD, Justice.

This controversy, as now before us, is a so-called new trial proceeding under Texas Rule of Civil Procedure 329, by petitioners, Mr. and Mrs. Smith, who were defendants cited by publication and not personally appearing in the original proceeding. The latter was a suit by United Gas Pipe Line Company, respondent here, for partition of two tracts of twenty acres and one acre respectively and the minerals under both; the defendants being the six other co-owners, among whom petitioner, Mrs. Smith, held much the largest interest, which, however, was not greatly in excess of that held by the plaintiff company. All the defendant co-owners, except Mrs. Smith and Emma Ruth Cordray, were personally served, some appearing and some defaulting. The suit resulted in three separate partition sales in which the plaintiff-now respondent-became the purchaser of the total mineral estate of both tracts, the surface of the twenty-acre tract and that of the one-acre tract respectively. There was no appeal from this original judgment. In fact, before the new trial was sought by petitioners Smith, the receiver's sales had been confirmed, the deed to respondent delivered, and various of the defendant co-owners had accepted their respective shares of the sale proceeds. At the present time the other co-owners, except petitioners, have all accepted their portions, the last acceptance-that of B. Everett Cordray-occurring shortly after the trial in the new trial proceeding. In the latter, petitioners brought all these other original defendants back into court, but none of them apparently filed pleadings except the guardian ad litem of two minor defendants, who opposed petitioners' motion.

The grounds of the motion and ultimate relief sought were in substance that petitioners had no actual knowledge of the original suit; that, in the latter, the property should have been partitioned in kind rather than by sale; that the $800 consideration received in the partition sale of the surface of the small tract (which had a small house on it) was grossly inadequate; that such tract with the house should be set apart to petitioner, Mrs. Smith by adjustment of equities, etc. Over objection of respondent United, the trial judge withheld his ruling on the motion itself pending a trial to a jury on the merits, at the conclusion of which and upon findings in accord with the contentions of petitioners, he granted the motion for new trial and simultaneously rendered judgment on the merits, providing for (a) partition in kind of both the mineral and surface estate of the twenty-one acre tract, with appointment of commissioners, etc., and (b) partition by receiver's sale of both estates of the one-acre tract. Against objection of respondent, United, this action of the court in effect ordered a new partition as between all the co-owners, despite the fact that they had all accepted the fruits of the original judgment and sales, except petitioners and B. Everett Cordray, who, shortly after the second proceeding, cashed the check he had received for his portion some months previously in the original proceeding. The new judgment also taxes all partition expenses and other costs of the original proceeding as well as all costs of the instant proceeding against respondent United, and charged respondent also with certain taxes levied against the property and paid by the receiver in the original proceeding.

On appeal by respondent United, the Court of Civil Appeals reversed and remanded the case for a new trial. 222 S.W.2d 310. While numerous errors were assigned, and some of them were discussed in the opinion below, the action of the court in ordering another trial was evidently based on the failure of the trial court to prepare and file its own bill of exception under Rule of Civil Procedure 372(i) with respect to allegedly improper jury argument of counsel for petitioners. We granted the writ of error on this point, but will first dispose of another which was discussed first below and upon which respondent strongly relies to sustain the reversal of the trial court.

We agree with the Court of Civil Appeals that the trial court did not err in holding only the one hearing for the purpose of determining, with the aid of a jury, the two matters of whether the original judgment should be set aside and what new judgment should be rendered. In the more frequent type of motion for new trial involving fact questions-for example, a motion at the same term based on alleged jury misconduct-the court, of course, conducts a special fact hearing before himself alone and resolves the matter. But a motion under Rule of Civil Procedure 329 is a considerably different matter, though the rule refers only to the 'court' and stipulates only the general prerequisite of 'good cause' in words which are also found in Rule 320 dealing with motions for new trial generally. 'Good cause' as used in Rule 329 means for all practical purposes in the present case the same as 'the existence of a meritorious defense'. See Dennis v. McCasland, 128 Tex. 266, 269, 97 S.W.2d 684, 686. Whether motions under Rule 329, or those under its statutory predecessor, Art. 2236, Vernon's Annotated Civil Statutes, are essentially bills of review, as some decisions seem to suggest, or simply motions for new trial to be made during a permanent two-year court term extension, as this court has sometimes flatly stated them to be, we need not argue here, nor need we try to coordinate with our decision here decisions such as Cragin v. Henderson County Oil Development Co., Tex.Com.App., 280 S.W. 554, which did not arise under Rule 329 or Art. 2236. Suffice it to say that, under the most recent holding of this court, in order to make good a contested motion under Rule 329, the defendant must not only allege under oath, but also prove that he has a meritorious defense. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363. This means that the defendant cannot escape from the original judgment against him without proving the very same defense which must also be established if he is to have a later judgment in his favor. Accordingly, the practice of having only one hearing or trial for the purposes of both the motion and the merits has been recognized in this state since at least as early as 1895, when the Court of Civil Appeals in Keator v. Case, 31 S.W. 1099, 1100, in effect instructed the trial court to follow it. Particularly under the now generally accepted obligation of bench and bar to seek judicial simplicity and economy, does it appear desirable to avoid trying the very same issue once before the judge and then again before the judge and jury. Brown v. Dutton, 38 Tex.Civ.App., 294, 85 S.W. 454, does state that the defendant's motion or bill under a statute similar to Rule 329 is in effect a new suit both as to the merits and otherwise, so that an appeal therefrom would not require the appeal bond required in an appeal from the original judgment. But it did not hold that such new suit must in turn be divided into two hearings. In fact the court cited Keator v. Case, supra, with approval. See also Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963, 965, stating that in a proceeding for relief from a default judgment rendered at a prior term, all issues involved shall be determined in a single trial. Even should it be true that the single trial practice in cases such as here presented departs from a sound principle that the granting or refusal of new trials in a function peculiar to the judge, the departure would yet not be a great one, practically speaking, on account of the limited number of instances in which it can occur.

The question of improper argument of petitioners' counsel has given rise to numerous subsidiary questions of procedure. Respondent and the court below would have another trial because the trial court failed to prepare and file his own bill of exceptions, as trial courts are required by Rule 372(i) to do when complaining counsel refuses to accept the court's qualifications of the bill originally tendered by counsel. Petitioners answer that this point was waived by respondent's failure to assign it as error below (though respondent did clearly assign the basic question of improper argument); that the tendered bill with the court's qualifications thereon (which, incidentally, is not in the transcript) was itself the court's own bill under the Rule and that the court actually tendered such bill to respondent's counsel, who respectfully told the court in effect to do with it whatever the court might desire. Petitioners further say-and we think correctly-that respondent's 'bystanders' bills' (included in the transcript) which the court below said it could not consider for lack of the court's own bill, were in fact not bystanders' bills at all, being merely affidavits of counsel, which could not be considered on appeal even had the trial court filed his own bill. In reply respondent says petitioners waived the alleged inadequacy of the bystanders' bills by failing to attack them within the period specified by Rule 404. Respondent also refers vigorously to the non-technical character of the Rules of Civil Procedure and here renews a motion unsuccessfully made in the Court of Civil Appeals under Rules 428 and 372(c) to bring up the official court reporter's record of the arguments complained of-such record being attached to the motion and appearing also in the so-called bystanders' bills in the transcript as well as in respondent's reply to petitioners' application for...