Not being able to agree with my associates in the disposition of the motion for rehearing in this cause, I hereby file the following dissenting opinion:
As stated in the majority opinion, this is an appeal from a judgment denying a new trial in a case in which service was had by publication. The suit was based upon a vendor's lien note executed by appellant, in part payment for two lots in Wortham; said note being for $150, and falling due May 1, 1922. Appellant was duly notified of the maturity of said note by the First State Bank of Wortham, which held the same for collection. About December 1, 1922, appellant moved from Mexia, Tex., to Cisco, and resided there until about April, 1923, when he moved to Los Angeles, Cal., where he has since continuously resided. This suit was filed September 19, 1922, and citation issued to Limestone county, and was returned by the sheriff of said county, reciting he was unable to locate defendant in said county, after which, about January 2, 1923, an affidavit for citation by publication was filed and service by publication duly had. On May 30, 1923, judgment was rendered in favor of plaintiff for the amount of said note and foreclosing the vendor's lien. Order of sale was issued and the property sold thereunder to appellee for $100 on October 2, 1923. The trial court found that said property "was sold for an adequate price under the facts then existing." The bill of review for a new trial was filed January 22, 1925.
The record further discloses that about the time the note sued upon fell due, May 1, 1922, appellant went to Wortham to try to get the note extended, but was unable to see appellee, so no extension was made. Aside from this trip to Wortham, he manifested no interest in the matter, moved from Mexia to Cisco and from Cisco to California, and lived there to January, 1925, without ever paying the note, offering to pay it, or even making any inquiry about it, not even paying any taxes on the property for 1922, 1923, and 1924 — in fact, paid no attention to the note or the property until the oil boom started up in Wortham, when he became alive, as is shown by his evidence as follows:
"I made inquiry in January, 1925, in regard to said property, because I understood an oil well had been discovered in that vicinity, and I wished to perfect the title so that I could execute an oil and gas lease upon the property, * * * so I had my partner, Mr. Hardin, wire Mr. O'Neal at Teague, Tex., to attend to the matter of perfecting the title and securing prospective leases of the property for me."
Article 2026 of our statutes provides:
"In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by an attorney of his own selection, a new trial may be granted by the court upon the application of the defendant for good cause shown, supported by affidavit, filed within two years after the rendition of such judgment."
This statute was enacted in 1846, and has been referred to and construed many times, and it has been universally held that, in order for a defendant to be entitled to a new trial, he must allege and prove, among other things, that he had a good defense — a meritorious defense — to plaintiff's cause of action. Kitchen v. Crawford,13 Tex. 516; Mussina v. Moore, 13 Tex. 7; Snow et al. v. Hawpe,22 Tex. 171; Schleicher v. Markward, 61 Tex. 99; Strickland v. Baugh (Tex.Civ.App.) 169 S.W. 181.
The trial court in this case found, in effect, that appellant owed the note sued upon in the original case, and that same was secured by the vendor's lien on the lots, and that appellant had no defense to the original suit, and so overruled the application for a new trial. This court held that appellant had a good defense in part at least, in that he could and doubtless would, if he had known of the suit, paid off said note and court costs *Page 281 and prevented a foreclosure, and based said holding on the opinion of our Supreme Court in the case of Wiseman v. Cottingham, 107 Tex. 68,174 S.W. 281. But, in view of many other prior decisions of our Supreme Court, it is thought by the writer that this court has erred in applying said decision to the facts of this case. In that case T. A. Cottingham had given a vendor's lien note, which was transferred to Mrs. Wiseman, and after the death of Cottingham, and after an ineffectual effort by Mrs. Wiseman to collect said note from the administrator of his estate, she procured the vendor's superior title to be transferred to her, and abandoned her efforts to collect said note, and brought suit against the administrator and the heirs of T. A. Cottingham to recover the land, and cited some of said heirs by publication, and on trial judgment was rendered for Mrs. Wiseman for said land. Within two years, two of said heirs, living, one in North Carolina and the other in Missouri, filed their petition for a new trial, which was granted, and our Supreme Court said, in effect, that they had a good defense to the recovery of said land, in that they, by paying said incumbrance, would have been entitled to recover the land.
This decision is doubtless correct as applied to the facts of that case, but the facts are quite different from the case before us. The Cottingham heirs had inherited an interest in land, incumbered, but it was not their debt, they were in no way obligated to pay such debt, and they not only had no notice of the suit to recover said land, but, as far as the opinion in that case shows, did not know of the existence of any incumbrance against said land. The suit was not brought to recover a debt against said heirs, or any one else, and foreclose a lien, but was for the recovery of land on the ground that plaintiff In that case held the superior title. These heirs did have a good defense, a meritorious defense to the suit for recovery of the land, and that defense was not the performance of something which was the very object of the suit to compel them to perform, and such defense was not the performance of something they were legally obligated to do, but the performance of a thing that was not charged against them or any one else, a thing that was not sought by the suit, and a thing they were in no way obligated to perform. But in the case before this court appellant had executed the vendor's lien note sued upon. He had obligated himself to pay it May 1, 1922. He did not pay it, and never offered to pay it until in January, 1925, nearly three years after its maturity, and more than a year after a foreclosure was had, and in his petition for a bill of review he, in effect, admitted plaintiff's cause of action as set out in plaintiff's petition in the original suit, but said he had a good defense, in that, if he had known of the suit, he could have paid off said note and thereby stopped said suit. The defense referred to by our Supreme Court in Mussina v. Moore, 13 Tex. 7, is thus stated by Justice Lipscomb: "And that he had a good defense against the suit."
In Kitchen v. Crawford, 13 Tex. 519, our Supreme Court, by Justice Wheeler, in reference to what is now article 2026, said:
This act "does not contemplate a bill of review strictly and technically, as known to courts of chancery, but was intended to afford a more ample remedy, and to give the defendant, who, from want of actual notice of the suit, had been deprived of the opportunity of being heardto contest the plaintiff's demand and assert his matters of defense, upon a proper application, the right to a retrial and reinvestigation of the merits of the case; and that the petition for this purpose will be deemed legally sufficient, on demurrer, if it appear by its averments that the defendant had a meritorious defense to the action," etc.
In Snow v. Hawpe, 22 Tex. 171, the "good defense" referred to was "that the cause of action, upon which the judgment was obtained, was false and unfounded, and that the judgment rendered thereon is fraudulent and void."
In the case of Schleicher v. Markward, 61 Tex. 103, our Supreme Court, by Chief Justice Willie, said:
"Our own decisions are to the effect that, on application to review a judgment rendered upon service by publication, the applicant must allege that he has a good defense to the claim upon which the original suit was founded," etc.
See, also Strickland v. Baugh (Tex.Civ.App.) 169 S.W. 181.
The good defense, or the meritorious defense, referred to by our Supreme Court in all cases where the question has been discussed, seems to be a defense that would defeat plaintiff's claim or show that he had no claim. So far as the writer has been able to find, there is no decision from any of the appellate courts of this state to the effect that the right of a defendant to admit plaintiff's cause of action in the original suit and to pay off same and thereby stop such suit constitutes a good defense or a meritorious defense to plaintiff's cause of action as referred to in article 2026 of our Revised Statutes. Such holding was reached by analogy between this case and the case of Wiseman v. Cottingham, above referred to, but it is thought we have extended the decision in that case too far. If our holding in the original opinion herein should become the law in this state, it is thought it would be equal to adding a provision to article 2026, to the effect that in all cases where foreclosure of any kind of a lien is sought, and process served by publication, the defendant shall have two years in which to redeem his property. The Legislature has never enacted such provision, and, if such was their intention, it seems they would have incorporated said proviso in said statute. *Page 282
The trial court found that appellant had no defense to said original suit, and the writer is of the opinion that the trial court was right, and that this motion should be granted, and the judgment of the trial court affirmed.