Wells v. Southern States Lumber and Supply Co., A14-86-352-CV

Decision Date06 November 1986
Docket NumberNo. A14-86-352-CV,A14-86-352-CV
Citation720 S.W.2d 227
PartiesNorman WELLS, Individually and doing business as Norman Wells Constructors; Club Casino, Inc., Appellants, v. SOUTHERN STATES LUMBER AND SUPPLY COMPANY, Appellee. (14th Dist.)
CourtTexas Court of Appeals

James A. Gieseke, Houston, for appellants.

William A. Petersen, Jr., Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

OPINION

MURPHY, Justice.

This is an appeal from a default judgment entered in favor of appellee, Southern States Lumber and Supply Company, in a suit to recover damages for lumber and building materials furnished to appellants. In two points of error appellants complain that: (1) the trial court erred in granting a default judgment; and (2) the trial court abused its discretion and erred in denying appellants' motion for new trial. We affirm.

Appellee filed suit against appellants. Appellee was unsuccessful in obtaining service on appellants and filed its motion and order for substituted service. Appellants filed a motion to quash service of citation. Appellee did not contest the motion and an order quashing citation as to both appellants was entered on September 16, 1985. When no further pleadings were filed by appellants, a default judgment in favor of appellee was entered by the court on February 3, 1986. Appellants received postcard notice of the default judgment and filed a motion for new trial which was denied by the trial court.

In their first point of error appellants complain that the trial court erred in granting a default judgment for the reason that appellants never received notice of a hearing on the default judgment. Appellants' first point of error is without merit. They were not entitled to notice. Tex.R.Civ.P. 122 states:

If the citation or service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him.

Id.

The record indicates that after service of citation was quashed appellants failed to appear and answer within the time stated in Rule 122 (more than four months passed from the date service of citation was quashed to the date the default judgment was entered). According to Rule 122, default judgment was proper and no notice was required. Point of error No. 1 is overruled.

In their second point of error appellants complain that the trial court abused its discretion and erred in denying their motion for new trial.

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), provides the basic rules governing the setting aside of a default judgment and the granting of a new trial. The basic rule provides that:

[a] default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious...

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5 cases
  • Estate of Pollack v. McMurrey
    • United States
    • Texas Supreme Court
    • June 30, 1993
    ... ... (Tex.App.--Corpus Christi 1987, no writ); Wells v. Southern States Lumber & Supply Co., 720 ... ...
  • Hahn v. Whiting Petroleum Corp.
    • United States
    • Texas Supreme Court
    • September 15, 2005
    ... ... Co. v. Wright, 396 S.W.2d 443, 446-47 ... Rule 1.06(a) states, "A lawyer shall not represent opposing parties ... ") with Core, involving four oil and gas wells. 2 Under the agreements, Core allegedly arranged ... erroneous); see also Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988); ... S. States Lumber and Supply Co., 720 S.W.2d 227, 229 ... ...
  • Lowe v. Lowe
    • United States
    • Texas Court of Appeals
    • June 18, 1998
    ... ... , 755 (Tex.App.--Tyler 1994, writ denied); Wells v. Southern States Lumber and Supply Co., 720 ... ...
  • Banowsky v. Schultz
    • United States
    • Texas Court of Appeals
    • February 10, 2016
    ... ... P. 166a(c); Nixon v ... Mr ... Prop ... Mgmt ... Co , 690 S.W.2d 546, 548 (Tex. 1985). We review a ... "[s]ection 3 specifically and unequivocally states, 'The provisions of this Act shall not apply to ... ...
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