Washington v. Golden State Mutual Life Ins. Co., 185
| Decision Date | 11 December 1968 |
| Docket Number | No. 185,185 |
| Citation | 436 S.W.2d 554 |
| Parties | Clara L. WASHINGTON, Appellant, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Appellee. . Houston (14th Dist.) |
| Court | Texas Court of Appeals |
Robert W. Hainsworth, Houston, for appellant.
Perry Barber, Jr., Baker, Botts, Shepherd & Coates, Houston, for appellee.
Appellant, Clara L. Washington, filed in the District Court of Harris County a petition for bill of review of a summary judgment rendered on February 24, 1966 by the trial court in a suit on a life insurance policy. Suit for bill of review was filed on January 29, 1968, and on April 30, 1968, appellee, Golden State Mutual Life Insurance Company, filed motion for summary judgment. The trial court granted appellee's motion for summary judgment on June 3, 1968 and denied Mrs. Washington, appellant, any and all relief. The appeal is from the trial court's summary judgment in the suit seeking bill of review.
This case involves a prior suit filed by Clara L. Washington against Golden State Mutual Life Insurance Company on August 19, 1964. See Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856, (Tex.Civ.App.), err. ref. per curiam, 408 S.W.2d 227 (Tex.Sup.1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1349, 18 L.Ed.2d 434, rehearing denied, 387 U.S. 938, 87 S.Ct. 2049, 18 L.Ed.2d 1006 (1967). In the prior case the same defendant moved for summary judgment, and on January 31, 1966, the trial judge considered affidavits and argument of counsel on the merits and announced that it would grant the motion. Up to this time appellant had not raised any objection to the judge's proceeding with the hearing. However, later the same day appellant filed a motion in which she claimed that the judge should not have proceeded with the hearing on appellee's motion for summary judgment because she had not had ten days notice of hearing provided for by the Texas Rules of Civil Procedure, and that summary judgment was improper as a matter of substantive law. On February 24, 1966, judgment that appellant take nothing by reason of her suit against appellee was signed and entered, and appellant attempted to perfect an appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas.
Appellee moved the Court of Civil Appeals to dismiss the appeal for want of jurisdiction because of the alleged late filing of appellant's appeal bond. On July 7, 1966, the First Court of Civil Appeals filed a written opinion holding that it had acquired no jurisdiction because of the late filing of appellant's appeal bond and ordering the appeal dismissed for want of jurisdiction. Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856. (Tex.Civ.App.). Mrs. Washington, the appellant, then applied to the Supreme Court of Texas for a writ of error, and on November 9, 1966 that Court filed a written opinion approving the opinion and the holding of the Court of Civil Appeals and refusing the application for writ of error. Washington v. Golden State Mutual Life Ins. Co., 408 S.W.2d 227 (Tex.Sup.Ct.). Appellant unsuccessfully sought review by the United States Supreme Court.
In the present suit which seeks bill of review appellant set out the original petition filed August 19, 1964 and, in effect, reargued the merits of the prior appeal and set out the history of the prior case. Appellee, as above stated, moved for summary judgment, asserting that appellant's failure to perfect an appeal from the judgment of February 24, 1966 defeated her right to a bill of review .
Appellant here contends that the trial court erred in rendering summary judgment because there was on file affidavits to show genuine issues of fact; in not hearing the entire controversy in one proceeding and determining it on its merits; in denying request of appellant for commission to take depositions; and that the trial court erred in the prior suit because appellant was allowed only nine days notice of appellee's motion for summary judgment, which rendered such prior judgment void and invalid by reason of Rule 166--A, Texas Rules of Civil Procedure, and the due process and equal protection clauses of the Texas and United States Constitutions. Further contention is made that the trial court erred in failing to allow bills of exception, though a summary judgment was involved.
The affidavits on file and the interrogatories denied by the trial court were directed generally at matters which occurred in the prior case, and they could have had no relevance to the controlling point here. The interrogatories were directed at the trial judge and one of the attorneys for appellee, and none of them dealt with fraud, accident or wrongful act of appellee unmixed with any fault or negligence on the part of appellant, particularly in connection with appellant's failure to perfect her appeal in the prior case.
As has often been stated by the courts, before a litigant can successfully set aside a final judgment, he must allege and prove, within the time allowed, a meritorious cause of action or defense to the cause of action alleged to support the judgment, And which he was prevented from making by extrinsic fraud, accident or wrongful act of the opposite party, And unmixed with any fault or negligence on his own...
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