Rosser v. Hanks

ON MOTION FOR REHEARING

McNElLL, Justice.

I respectfully dissent. The facts show that the default judgment was neither the result of intentional failure to answer the suit nor the result of conscious indifference on the part of appellee. Our court held in Iley v. Reynolds, Tex.Civ.App., 319 S.W.2d 194, that if neither of these situations existed a motion for new trial should be granted the defaulting party. The opinion in the present case sets forth the facts. It is seen therefrom that appellee when served with citation promptly called an attorney who advised him to bring the papers to his office; but appellee misplaced the citation served on him. He explained the reason that he did not act more promptly was because he thought he had more time than he did to answer the suit. The trial court ruled in his favor. All inferences must, therefore, be indulged in his behalf. Lyons v. Paul, Tex.Civ.App., 321 S.W.2d 944. Thus the facts show some excuse, though not necessarily a good one, for failure to file answer. Under such circumstances a motion for new trial should be granted. On this subject the Supreme Court in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, quotes approvingly from Dowell v. Winters, 20 Tex. 793, as follows (133 S.W.2d p. 125):

"But where the trial has not been delayed, and there is an affidavit of merits, we think the default should be set aside and the answer received, upon some showing by way of excuse, for the failure to plead in time. * * ”

Commenting upon this quotation, the Court in Craddock said:

“Some excuse, but not necessarily a good excuse, was the test there prescribed. When the opinion in that case is analyzed, it seems clear that the absence of an intentional failure to answer rather than a real excuse for not answering was the controlling fact.”

The cases just quoted from each involved error in the trial court’s refusal to grant a defaulting defendant’s motion for new trial. While no motion for new trial was filed in the present case, there was just reason and legal excuse for failure to do so. Appellee was diligent in ascertaining from the district clerk whether default had been taken against him. He was entitled to rely upon the information furnished him. He was not given the correct information. Because of this, he did not learn of the judgment until too late to file motion for new trial. In equity he is, therefore, entitled to the presumption that had he been correctly informed, a motion for new trial would have been promptly filed and granted. Craddock v. Sunshine Bus Lines, supra; Iley v. Reynolds, supra.

A bill of review against a default judgment should be granted if the grounds therein would have required the granting of a motion for a new trial, had it been *647presented at the time and in the manner provided by law. Pearl Assur. Co. v. Williams, Tex.Civ.App., 167 S.W.2d 808 (812); 17 Tex.Jur. 27.

I would grant the motion for rehearing and affirm the judgment of the trial court.