In the disposition of this case as to appellant Theo Ledel, the writer agrees with his brethren, but finds himself unable to do so as to appellant Charles Paggi. Regarding the questions passed upon, in the disposition of which the writer has been unable to concur, of such vital importance by reason of the uncertainty same will inject into the termination of the right of litigants to be heard on questions passed upon by courts after having had an opportunity, through the exercise of due diligence, to have had, in the fullest meaning of the term, "their day in court," the writer feels constrained to express the following views thereon:
For the material on which to base the discussion we are remitted to the case as presented by appellants' pleadings, and the writer accepts the statement as contained in the majority opinion, and, in the light of same, will discuss the following four questions, to wit: (a) The diligence exercised by appellant Paggi in the prosecution of his defense; (b) fraud in the rendition of the judgment; (c) the rendition of judgment by default notwithstanding answer of appellant Paggi had been filed in due time before the rendition of judgment appealed from, but which answer had not been called to the attention of the court; (d) whether or not the judgment appealed from was subject to attack by the proceedings instituted by appellants by reason of the fact that same was rendered on insufficient or illegal evidence.
To the mind of the writer the allegations, construed in the strongest light, utterly fail to show the slightest degree of diligence as that term immemorially has been used in its application to the attention and care a litigant is required in the course of a judicial proceeding to exercise in the prosecution of a cause of action, or the urging of a defense thereto. In one breath it is alleged that the verdict and judgment rendered in said cause was procured through fraud, in that the trial court was led to believe that appellant Paggi had not filed his answer in said cause, and, before the warmth of such utterance ceased, we find the allegation which diametrically opposes the one just referred to, to wit, that the only evidence introduced in order to prove that he was a partner of the said Theo Ledel, one of the appellants herein, was two mercantile reports. Why was this evidence to prove the existence of a partnership introduced unless the answer of said appellant was before the court denying the existence of said copartnership? which alone made it necessary to prove the existence of the partnership as alleged, for, without such answer, the issue requiring the introduction of evidence to establish the existence of a partnership would not have been raised, and certainly it should not be assumed that the appellees unnecessarily, as plaintiffs in said original suit, would have injected this burden into the case. From this allegation it should be assumed that the answer of appellant Paggi was before the court, and, on the issue as to partnership presented, the evidence was heard by the court.
At best, the allegations of Paggi are but a shadowy veil of insinuations that somebody perpetrated a fraud whereby his answer was not considered by the court, in that the court was induced to believe that an answer had not been filed by him. With the insinuations appellees are not connected, unless vivid imagination is resorted to so as to read in between the lines the imputation that the "fraud" was the act of some one adversely connected with the litigation. In other words, the allegation of fraud is so imperfect, vague, and uncertain that, in order to give it the effect of a specific allegation in any respect, a vital omission must be supplied by inference, to wit, that because of the interest of appellees, they being in position to be benefited by a fraudulent act, the fraud imputed to some one by the allegation was committed by one of the appellees. Surely that presumption should not be favored in order to sustain such an imperfect allegation, for the existence of fraud is never presumed, but, like any other fact subjected to judicial investigation, must be properly pleaded and established by legal evidence. However, that the allegations may be considered in the strongest effect in behalf of Paggi, let it be assumed that his answer was not called to the attention of the court. What of his diligence? The writer is aware of the fact that it is of prime importance in all litigation that every litigant have his day in court; that is, by the use of proper diligence to be heard in the presentation of his cause of action, or, on the other hand, in presenting his grounds of defense; that next in importance to society is that there shall be an orderly determination and conclusion of all litigation. Therefore, in interest of a speedy determination of all litigation, litigants from time *Page 968 immemorial have been required to use due diligence in the preparation of a suit for trial, whether it is that of plaintiff to prepare to present his cause of action, or that of defendant to prepare to present his defense.
Paggi, as an excuse for not presenting his defense, as revealed by his answer filed two months before the judgment was rendered in cause No. 32723a, Rose Manufacturing Co. v. Ledel Dry Goods Co., and which he offers as an excuse for failure on his part to exercise due diligence, in effect alleged the filing of his answer, the fact that his attorney relied upon the clerk of the court to notify him of the setting of the case when same should be set, and that he relied upon Messrs. Leake Henry, attorneys for plaintiffs in said cause No. 32723a, to notify him of the setting of the case, as it was their duty to do according to the ethics of the profession; that he was not notified by said Leake Henry or any one else of the setting of the case.
It must be apparent to even the casual observer that nowhere is it alleged, by inference or otherwise, that the clerk of the court promised to notify appellants' attorney of the setting of the case, or that the attorneys representing the plaintiffs in said suit promised to notify him, or that either had fraudulently concealed from him the setting of the case, or that either were guilty of any character of act or conduct whereby he was prevented from being advised of the proceedings had, or to be had, in reference to said suit, or that relieved him from exercising due diligence. The legal duty did not rest upon either the clerk of the court or the attorneys for the plaintiffs to notify him in reference to the setting of the case, and, if the clerk of the court had assumed by an express agreement to have performed this service for appellants' attorney, it would not have been such an agreement, the breach of which, unless caused by the act or conduct on the part of those adversely interested, would relieve appellant Paggi from the effects flowing therefrom.
In addition, the writer is constrained to say that, if the clerk agreed to notify appellants' attorney and he depended upon such agreement, and the clerk failed to perform his obligation based upon a valuable consideration, then, possibly the clerk, as an individual, might be liable to appellant for such damages as he may have suffered, but certainly, from the allegations made by appellants, the appellees in this case were in no wise interested in any agreement that appellants' attorney may have made with this clerk, and, whether the mistake or negligence was on the part of Paggi or his attorney, the effect would be the same, for, as held in the case of Fisher v. Hemming (Tex.Civ.App.)164 S.W. 913:
"It is no ground for relief against a judgment recovered against a party that it was obtained by reason of the mistake or negligence of his attorney; such mistake or negligence being imputed to the client."
Assuming that the answer of Paggi presented a valid defense which he was prevented from making by virtue of the existence of the facts as alleged by him, the relief from the effect of the judgment rendered against him now sought should not be granted because it cannot be gathered from the allegations that he was prevented from making such defense either by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part. Construing his allegations in the strongest light in his behalf, it is apparent therefrom that the injury complained of by him is due entirely to the fault of his attorney in not using that degree of diligence required of those representing litigants, and not due in any respect to any fraud or any other act of appellees, or any one of them, and certainly not on account of any accident.
It may be conceded that the allegations in behalf of Paggi show that he had a valid defense to the suit as brought by Rose Manufacturing Company, and that an injustice was done him through the judgment rendered in said cause; yet that will not suffice to grant him the relief sought, having failed to show that he was prevented from urging his defense by reason of fraud, accident, or the act of the other party. This burden Paggi signally failed, even from his allegations, to discharge. This position is amply supported by the following decisions, from which the writer feels warranted in quoting in order to show the application of the principles therein announced to the instant case:
J. M. Brownson et al. v. J. W. Reynolds, 77 Tex. 254, 13 S.W. 986, in which it is held:
"Equity will not grant a party to a judgment a new trial when the failure to have his case properly presented resulted from the negligence or mistakes of his counsel." Further, "equity will not grant a new trial and set aside a judgment except upon a showing of strict diligence in the prosecution of the cause, and upon proof that after doing all that such diligence required he had been deprived by fraud, accident, or other uncontrollable circumstances of the opportunity of properly presenting his case on the trial."
In Johnson v. Templeton, 60 Tex. 238, the court held:
"To obtain a new trial after the expiration of the term, something more than that injustice has been done must be shown. It must appear: (1) That the former judgment was not caused by any negligence of him who seeks to set it aside, but that diligence was used to prevent it; (2) that he had a good defense to the action, which he was prevented from making by fraud, accident, or the acts of the opposing party, wholly unmixed with any fault or negligence of his own; (3) that there is good cause to believe that a different result will be obtained by a new trial;" and, *Page 969 further, "bills seeking relief from final judgments, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted."
To the same effect is the holding in Wagley v. Wagley (Tex.Civ.App.)230 S.W. 493, Harn et al. v. Phelps et al., 65 Tex. 592, and Nevins v. McKee, 61 Tex. 412, in which Willie, C.J., in delivering the opinion for the court, held:
"It is not sufficient to show that injustice has been done. He must show that the judgment resulted from no negligence on his part; that he had a meritorious defense, and had used diligence, and was prevented from making his defense by the fraud, accident or acts of the opposite party, wholly unaffected by any fault or negligence of his own."
It is further contended that the Judgment rendered against Paggi is false and fraudulent by virtue of the following allegations: That the judgment in said cause rendered against him, the said Paggi, is false and fraudulent, in that it says that the defendant Paggi wholly made default, when, in truth and in fact, the said Paggi had his answer filed in this cause in this court on the 2d day of March, 1922. The preparation and filing of the answer were only two of the essential steps necessary to take in the presentation of his defense. It was not incumbent upon the trial judge to ascertain whether or not an answer had been filed. The duty rested upon Paggi or his attorney representing him to properly call to the attention of the trial court, not only the filing, but the contents of the answer. The fact that his answer was not so called to the attention of the court was due exclusively and solely to the negligence of Paggi's attorney, and the rendering of the judgment, notwithstanding the filing of the answer, same not having been called to the attention of the court, did not in the least render the judgment entered in said cause false and fraudulent, but was properly rendered as on default.
The holdings in the case of Hopkins v. Donahoe, 4 Tex. 336, are sufficient on which to rest the above proposition. The following liberal quotation is made therefrom:
"To hold that the mere apparent filing of the answer by the clerk, when not noted in the minutes, nor otherwise shown by the record, shall overbear and control the recitals of the judgment, would be at variance with the most obvious principle, and would open a door to abuses which may be readily conceived. Let this principle be established, and, to reverse a judgment, it would only be necessary for the defendant, before the fifth day of the term, to cause the clerk to mark upon his answer `filed,' which is a mere clerical act, done of course at the instance of the party, without an inspection of the paper, or a knowledge of its contents; then to stand silently by, and permit judgment to be taken by default against him; and, when execution is about to issue, obtain a writ of error. The answer, being found by the clerk among the papers of the case, would be embodied in the transcript, and made a ground for reversing the judgment. There is no principle of law which requires this court to sanction a practice susceptible of such abuse.
"But, if, in point of fact, the answer was on file, it does not appear to have been brought to the notice of the court. A defendant who has appeared and answered is presumed to be present in court, and cognizant of the action of the court in respect to his case, until it has been disposed of, for the term, by a trial or continuance. When the plaintiff proposed to take his judgment by default, it was the duty of the defendant to have objected, and brought his answer to the notice of the court; or, if he had inadvertently permitted judgment to go without objecting at the time, when apprised of it, which, if a vigilant suitor, he must have been, it was incumbent upon him to have moved to set aside the judgment. This, upon his showing that his answer had been filed, the court would have done of course. But this, this defendant did not ask, but stood by in silence, while the court proceeded to adjudicate his rights. And shall a party, who was silent in the court below, be permitted to come into this court, and first ask here the relief which would have been afforded him there, had he asked it? Shall he be permitted thus to take advantage of his own negligence and wrong? He who was silent in the court below, where he ought to have spoken, and has thus permitted the opportunity of making his defense, to pass by, ought not to be first heard in this court. * * *"
From the allegations contained in appellants' pleadings above quoted, it will be noticed that the relief from the judgment rendered in said cause No. 32723a is also sought on the ground that same was erroneously rendered, in that secondary or illegal evidence was received in proof of material allegations contained in plaintiff's petition in said cause. The application of the following well-recognized principle of law should be sufficient to deny the relief sought by appellant on this ground, to wit:
"The power to vacate judgments on motion is confined to cases in which the ground alleged is something extraneous to the action of the court or goes only to the question of the regularity of its proceedings. It is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it may have fallen. That a judgment is erroneous as a matter of law is ground for an appeal, writ of error or certiorari, according to the cause, but it is no ground for setting aside the judgment on motion. Thus the reception of secondary or illegal evidence in proof of a fact is no ground to annul the judgment rendered in the case." Article 329, p. 506, vol. 1, Black on Judgments (2d Ed.), and authorities cited in notes 254 and 255 under said article. *Page 970
The application of the above rule has been recognized by the courts of this state, notably the case of Harn v. Phelps, supra, in which it was held:
"When, in the exercise of lawful power, a court has rendered a final judgment, it must be held conclusive between the parties thereto, except in a proceeding appellate in character, unless some ground other than that it is probably unjust is shown, which, under the settled rules of law, is deemed sufficient to authorize a court of equity to re-examine the case" — citing, in support of this holding, Johnson v. Templeton, supra; Nevins v. McKee, supra.
Appellant Paggi urges as one of his principal grounds for the relief sought that the judgment rendered was without sufficient legal evidence. The judgment was rendered as on default after proper legal service of citation in the manner and form required by law. No statement of the facts proven (if any) on which said judgment was rendered is before us. On this ground appellant is not entitled to the relief sought; for, as so aptly and well said in the case of Callison v. Autry et ux., Adm'x,4 Tex. 371, in the absence of a statement of facts it is presumed in support of the judgment that every fact has been proved which could have been legally proved under the averments in the petition. The same presumption obtains in favor of a judgment by default. In the case of Long et al. v. Wortham, 4 Tex. 381, it was held that, "where there is judgment by default, the facts set out in the petition, are to be taken as proved" and admitted. This, the writer is persuaded to believe, announces a rule of law applicable as well to the case at bar as to the cases in which same was announced.
The above is sufficient to show the reasons actuating the writer to dissent from the majority opinion, and why, in his opinion, the Judgment of the court below should have been affirmed as to appellant Paggi.