Swenson v. Swenson

• Decision Date: 25 March 1971
• Docket Number: No. 15732,15732
• Citation: 466 S.W.2d 424
• Parties: Kathryn Thomas SWENSON, Appellant-Appellee, v. Bailey Allen SWENSON, Appellee-Appellant. (1st Dist.)
• Court: Texas Court of Appeals

Page 424

466 S.W.2d 424

Kathryn Thomas SWENSON, Appellant-Appellee, v. Bailey Allen SWENSON, Appellee-Appellant.

No. 15732.

Court of Civil Appeals of Texas Houston (1st Dist.).

March 25, 1971.

Monroe R. Talley, Houston, for appellant-appellee.

Hofheinz & James, W. Ervin James, N. Wyatt Collier, Houston, for appellee-appellant.

COLEMAN, Justice.

This is an appeal from a judgment entered in a Bill of Review action filed for the purpose of relitigating a divorce case. Bailey Allen Swenson, hereinafter called appellant, appeals from the denial of the petition for Bill of Review. Kathryn Thomas Swenson, hereinafter called appellee, appeals from that portion of the judgment denying her prayer for attorney's fees.

Over the objection of the appellant the trial court determined to first try the issues relating to the right to relitigate the questions settled by the previous judgment, reserving for later trial the issues of divorce and property settlement. Prior to the adoption of the Texas Rules of Civil Procedure on September 1, 1941, the law on this question was settled. Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022 (1936). In Hermann Hospital Estate v. Nachant, 55 S.W.2d 505 (Tex.Com.App.1932, holdings approved), the court said:

'* * * In other words, a bill of review is an independent suit filed in a court of competent jurisdiction, and cannot not be disposed of in sections by trying the issue of setting aside the original judgment in one proceeding or trial and the issue of meritorious cause of action or defense in another such proceeding or trial. There must be but one trial and one judgment * * *'

Rule 174(b), Texas Rules of Civil Procedure, provides: 'Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.'

Appellant has cited in support of his position Bridgman v. Moore, 206 S.W.2d 871 (Tex.Civ.App.--Beaumont 1947, writ ref'd, n.r.e.), and Fey v. Woods, 226 S.W.2d 918 (Tex.Civ.App.--Dallas 1950, no writ). Both of the cases stated the rule that there can be but one trial in a bill of review action at which all issues must be adjudicated. In Bridgman the court held that an order in such a case merely purporting to set aside a final judgment was ineffective and a later judgment entered on re-trial of the former case was void. The holding can be supported on the reasoning that the order in the bill of review case was not a final judgment. The court stated that the bill of review case was pending in the trial court so far as the record revealed.

The Fey case held that the judgment from which the appeal was taken was not a final judgment and the appeal was dismissed for want of jurisdiction.

The court did not discuss the possibility that the established law had been changed by Rule 174(b) in either of these cases. Two opinions of the Supreme Court of Texas indicate that it is necessary to consider this rule in the disposition of such cases. Palmer v. D .O.K.K. Benevolent Insurance Ass'n, 160 Tex. 513, 334 S.W.2d 149 (1960); Warren v. Walter, 414 S.W.2d 423 (Tex.1967).

The Supreme Court of Texas has stated that the discretion to require severances and separate trials of issues conferred on trial courts by Rule 174 and other rules is 'about as broad as language could make it.' Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731, 735 (1952). The rule was given thorough consideration by the Supreme Court in Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958), and the court refused to apply it in that case, saying: 'Our conclusion is that although the discretion lodged in trial judges by Rule 174(b) in ordering separate trials of 'issues' is indeed broad and realistic, it does not authorize separate trials of liability and damage issues in personal injury litigation.'

The court is authorized to order separate trials of issues 'in furtherance of convenience or to avoid prejudice.' These objectives are as important in a bill of review proceeding as in any other case . A case seeking a bill of review may be filed in all types of litigation, and may involve many complicated issues, all of which must be determined in some manner before a final judgment can be entered. Before this procedure can be successfully invoked the litigant '* * * must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own * * *' Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

In Ft. Worth & Denver City Ry. Co. v. Reid, 115 S.W.2d 1156 (Tex.Civ.App.--Ft. Worth 1938, no writ), Justice Speer said:

'The rule of law is well settled in this state that, to entitle a party upon bill of review to have a prior judgment set aside, he must allege and prove such judgment was obtained without fault on his part, and if the former judgment was in his favor, that he has grounds for different and greater relief than that previously given him; and if the judgment sought to be reviewed was one against him, he must show he had, at the time, a meritorious defense, which if allowed to present, the result would have been different.'

In Crosby v. Di Palma, 141 S.W. 321 (Tex.Civ.App.--El Paso 1911, writ refused), Justice Higgins wrote: '* * * It is sometimes stated that a good or a meritorious defense must be shown, but we think the correct statement of the rule is, and that the terms quoted mean only, that it is necessary to reasonably show the result would probably have been different. * * * When this is shown, the measure of the law is fulfilled, and the parties are then relegated to their original status of plaintiff and defendant, with the burden of proof resting upon the plaintiff to make his case, leaving the defendant the right, if he sees fit, to rely merely upon the weakness of his adversary's case * * *'

A clear statement of the rule is found in the case of Winters Mutual Aid Ass'n Circle No. 2 v. Reddin, 49 S.W.2d 1095 (Tex.Com.App .1932), as follows:

'The courts of this state have established a rule that any person injured in a judgment may at a subsequent term institute a suit to set aside such judgment and retry the cause. This is an equitable proceeding. The essential elements must be alleged showing in particular that the judgment was obtained through the wrongful conduct of the opposite party, unmixed with fault upon the part of the complainant, and, moreover, that the complainant has a meritorious defense which, if heard, would probably bring about a different result.'

See also, Mann v. Risher, 131 Tex. 498, 116 S.W.2d 692 (1933).

While these cases were decided on the pleadings, they emphasize the fact that it is unnecessary for the movant to prove facts constituting a complete defense to the suit in which the judgment was rendered. Where, as in this case, the movant has alleged facts which, if heard, would probably bring about a different result, and has alleged that he was prevented from presenting those facts by the wrongful conduct of the opposite party, unmixed with fault on his part, it might well serve the public convenience to try the issue of wrongful conduct, and the issue of negligence, or fault, of the movant before beginning consideration of the merits of the case. The question of meritorious defense would be resolved at a later trial by the answers to the issues on the merits submitted to the jury as in any ordinary case.

If the litigant failed to prevail at the trial on the issues first presented, an adverse final judgment would result. Such a situation is presented in this appeal. The judgment here entered by the trial court is final rather than interlocutory. Southern Travelers Ass'n v. Stillman, 109 S.W.2d 285 (Tex.Civ.App.--Ft. Worth 1937, writ refused); Hernandez v. Light Publishing Co., 245 S.W.2d 553 (Tex.Civ .App.--San Antonio 1952, writ refused).

In support of the judgment we presume that the trial court found that the separate trial of issues in this case would 'further convenience' and would 'avoid prejudice'. In appellant's petition he referred to the pleadings in Cause No. 653,568, and stated his intention to introduce them into evidence. They do not appear in the transcript or statement of facts. A complete statement of facts was...