Swartz v. Swartz

• Decision Date: 17 November 1934
• Docket Number: No. 11484.,11484.
• Citation: 76 S.W.2d 1071
• Parties: SWARTZ v. SWARTZ.
• Court: Texas Court of Appeals

76 S.W.2d 1071

SWARTZ v. SWARTZ.

No. 11484.

Court of Civil Appeals of Texas. Dallas.

November 17, 1934.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action for divorce by Arthur L. Swartz against Mary J. Swartz. From the judgment, the defendant appeals.

Reversed and remanded.

Peyton A. Ellison and Hoyt A. Armstrong, both of Dallas, for appellant.

Walter R. Fly, of Dallas, for appellee.

LOONEY, Justice.

This is an action for divorce, instituted July 15, 1932, by Arthur L. Swartz against his wife, Mary J. Swartz, a resident of the state of California. The divorce is sought on grounds of cruel treatment, the allegations being of a very general nature. Personal service of process is not shown, but it seems that, on September 12, 1932, an answer was filed on behalf of Mrs. Swartz, by W. L. Johnson, an attorney of the city of Dallas. On November 28, 1932, the case was heard ex parte and a decree granted. On December 7, 1932, through another attorney, defendant moved for a new trial; the motion being overruled, this appeal ensued.

Appellant contends that the court erred in denying her a new trial, in that, she was not represented by counsel at the trial, although reasonable diligence had been exercised to have the suit defended; hence, without fault, she was deprived of her day in court.

Appellee counters with the proposition that the absence of appellant from the hearing, after answering, was in legal effect the withdrawal of all opposition to appellee's right to a divorce, constituted a waiver of all errors in pleading and proof, and impliedly confessed judgment in his favor.

The salient facts bearing upon this issue are these: Learning of the pendency of the suit, although not served with process, appellant employed local counsel in San Francisco, Mr. Charles McLaughlin, who solicited the services of Joseph R. McKnew, of Dallas, to represent appellant, who, not being able to give personal attention to the suit, suggested that a Mr. Johnson be employed, and this being arranged by wire, Mr. Johnson filed an answer, September 12, 1932. Not hearing from either McKnew or Johnson, local counsel wrote McKnew October 24, 1932, inquiring as to the status of the case; receiving no reply, wrote Johnson on November 2d, but failing to hear from either, local counsel addressed a communication of inquiry to the district clerk of Dallas county, and again, on November 7th, wrote both McKnew and Johnson, requesting information, but receiving none, again wrote the district clerk, whose reply was received November 28th, stating that the case had been tried and the divorce granted; thereupon, defendant filed her motion for a new trial, which was overruled, as above stated.

From the above statement, we think it obvious that appellant, through no fault or neglect on her part, was deprived of the privilege of defending the suit. She exercised due diligence by employing an attorney in the first instance, who, though filing an answer, abandoned the case, failed to answer inquiries, or in any manner to communicate with his client or her local counsel in regard to the case. Of necessity, appellant had to rely upon her attorney at the seat of the controversy, who, for reasons not disclosed by the record, failed utterly to give attention to the business undertaken.

The general rule is that, before being adjudged to suffer, either in person or property, a litigant is entitled to his day in court. His right to appear and be represented, by counsel of his own choosing, is valuable, and its unwarranted denial is reversible error. Western Union Tel. Co. v. Chas. C. Brent & Bro., 191 Ky. 503, 230 S. W. 921; Farmers' Gas Co. v. Calame (Tex. Civ. App.) 262 S. W. 546; Metts v. Waits (Tex. Civ. App.) 286 S. W. 923.

Appellee invokes the doctrine applicable where an effort is made to set aside a judgment nil dicit. This rule has no application here, as default or nil dicit judgments are unknown to divorce proceedings. A divorce is granted only after hearing full and satisfactory evidence, establishing the essential facts, and this without regard to the answer of the defendant, or whether an answer is filed or not. The controlling statute is article 4632, R. S. 1925, reading: "* * * In all such suits the defendant shall not be compelled to answer upon oath nor shall the petition be taken as confessed for want of answer, but the decree...