Westchester Fire Ins. Co. v. Nuckols

• Decision Date: 23 February 1984
• Docket Number: Nos. 11-83-244-C,11-83-245-CV,s. 11-83-244-C
• Citation: 666 S.W.2d 372
• Parties: WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Paula NUCKOLS et al., Appellees.
• Court: Texas Court of Appeals

Page 372

666 S.W.2d 372

WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Paula NUCKOLS et al., Appellees.

Nos. 11-83-244-CV, 11-83-245-CV.

Court of Appeals of Texas,

Eastland.

Feb. 23, 1984.

Rehearing Denied March 15, 1984.

William A. Hicks, McMahon, Smart, Surovik, Suttle, Buhrmann & Cobb, Abilene, for appellant.

J.R. Black, Jr., Scarborough, Black, Tarpley & Scarborough, Abilene, Charles E. Brownfield, Jr., Stamford, for appellees.

RALEIGH BROWN, Justice.

These appeals concern two related cases. The first is an appeal from the granting of a summary judgment against the surety on an Administratrix's bond; the second is an appeal from a take nothing summary judgment as to the surety's bill of review on the order imposing liability on the Administratrix. We reverse and remand both causes.

J.A. Hill, Jr., died intestate in 1975, in Knox County. His widow, Jo Ima Hill, was appointed Administratrix of the estate. Westchester Fire Insurance Company is the surety on the Administratrix's bond. On November 4, 1981, appellees Paula Nuckols and Patsy Antonisse, daughters of decedent and Administratrix, filed an application requesting that the county court enter an order directing that the estate be closed and requiring the Administratrix to deliver to appellees their portion of the estate. The record reflects no hearing or order pursuant to this application. On June 11, 1982, appellees filed a second application, which contained allegations that the Administratrix had used $25,000 of the estate for her personal use. The application requested that the Administratrix show cause why a partition and distribution should not be made. It also requested that she file a verified accounting and exhibit, and sought general relief. Neither application requested money damages against the Administratrix.

On August 24, 1982, the county court entered an order that the estate be closed. The order additionally granted appellees a judgment against the Administratrix in the amount of $20,883.04 for monies and properties she failed to deliver to appellees, and for interest and court costs.

On January 5, 1983, appellees filed their second suit, in district court against Jo Ima Hill as Administratrix and Westchester as surety on the $20,000 Administratrix bond. Westchester filed a bill of review January 21, 1983, in the county court requesting that the court upon hearing set aside the judgment entered against the Administratrix in the probate proceedings, and that after trial to enter judgment that appellees take nothing from the Administratrix. The county court transferred the bill of review to the district court in March of 1983. Appellees subsequently filed a motion for summary judgment in each cause. The district court entered two final summary judgments in appellees' favor, stating that the judgment of the county court dated August 24, 1982, in the probate proceeding was valid, proper and correct, and that Westchester's bill of review was without merit. The summary judgment in the cause on the bond ordered that appellees recover from Westchester $20,000 plus interest and costs; the summary judgment in the bill of review cause ordered that Westchester take nothing. Appellees' claims against the Administratrix and Westchester's cross action against the Administratrix were severed out of appellees' suit on the bond, made a separate cause, and are not involved in this appeal. Westchester appeals the granting of the summary judgment in appellees' cause on the Administratrix bond and the take nothing summary judgment as to its bill of review.

In each cause Westchester contends that the court erred in granting appellees a summary judgment because Westchester satisfied the statutory requisites of filing a bill of review pursuant to TEX.PROB.CODE ANN. sec. 31 (Vernon 1980), ¹ and was thus entitled to a trial.

To secure relief under the statutory bill of review as provided in Section 31, supra, it is necessary to specifically allege and prove substantial errors by the trial court. It is not necessary that the error appear from the face of the record. The fact of error may be proven on the trial. Hamilton v. Jones, 521 S.W.2d 350 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.). Appellees argue, however, that Westchester failed to meet the requirements of the statutory bill of review by not attempting to show a meritorious defense. We disagree. The bill of review provided by the probate code need not conform to the rules, and is not limited to the restrictions, of the equitable practice applicable to bills of review. Norton v. Cheney, 138 Tex. 622, 161 S.W.2d 73 (1942); Jackson v. Thompson, 610 S.W.2d 519 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ); Hamilton v. Jones, supra. Westchester alleged the errors committed by the county court in entering judgment against the Administratrix in the probate proceedings in its bill of review, amended bill of review and response to the motion for summary judgment; this was sufficient to comply with the bill of review under the probate code in order to be entitled to a trial. Hamilton v. Jones, supra. Consequently, the trial court erred in granting the summary judgments.

These points of error in each cause are sustained.

In another point of error in each cause, Westchester urges error in granting summary judgment because there were no pleadings in the county court cause to support rendition of the money judgment against the Administratrix.

A trial court cannot grant relief that is without pleadings to support it, and a party cannot sustain a favorable judgment based upon an unpleaded cause of action, absent trial by consent. Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); Crozier v. Horne Children Maintenance and Educational Trust, 597 S.W.2d 418 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.). There can be no trial by consent on issues decided by a default judgment, and the order under attack recites that the Administratrix "wholly made default." In determining whether a cause of action was pled,...