dissenting.
This majority have concluded propriety of reversal and remand on the equitable ground that there was abuse of discretion by the trial court in refusing to grant the timely filed motion for new trial. As I understand their opinion they have held error by the trial court because there was prima facie evidence that the failure to file a Defendants’ Answer before the Plaintiffs’ default judgment was rendered was not due to conscious indifference to attend obligations which were understood as necessary to prevent the judgment. They deem mere prima facie evidence compelling and controlling so that abuse of discretion resulted by the trial court’s refusal to grant new trial.
The leading case found by the majority as authority was Ward v. Nava, 488 S.W.2d 736 (Tex.Sup.1972). I confess I am unable to understand the action of the Supreme Court in that case. It commanded new trial where there had been a trial court’s refusal to grant such in a case in which there had not been evidence before the trial court at time of its order refusing new trial; where the only presentation was the affidavit of the defendant explaining his failure to file answer, attached to the motion for new trial (I have thought such done in order to establish right to produce evidence upon the hearing of the motion for new trial); and where, even if the affidavit be proper to be considered as evidence, I would think the affiant’s credibility would be for the court.
I am inclined to doubt propriety of the grant to a defendant the conclusive presumption that by the mere verification of his affidavit that his failure to file answer in a suit against him was not due to his conscious indifference plus further verification that he had taken action in searching his home for the citation (which the Supreme Court majority thought sufficient corroboration), without producing testimony subject to cross-examination, so as to compel the grant of new trial. Nevertheless, I submit to the authority of the deci*760sion in Ward v. Nava, though I consider it controlling upon a trial court only where— (1) premise for motion for new trial is ignorance that there was a suit, and (2) no counter affidavits are filed, and/or (3) only where there is complete absence of any evidence at the hearing on the motion.
In the instant case it was the adjuster for an insurance company, which by contract stood in the stead of appellants in aspects necessary to be considered, who was responsible for absence of a timely filed answer. His affidavit was attached to the motion for new trial. Unlike the circumstances in Ward v. Nava the defendant, represented by the adjuster, appeared and testified upon the hearing on the motion.
I would hold the adjuster’s credibility material. In this case the truth of the facts to which he testified could not be said to have been established because of any want of evidence in contradiction. His evidence was on state of mind known only to himself. Further, and even if the trial court was obliged to accord credibility, the fact of the adjuster’s intentional delay in employing and directing an attorney to file an answer was proved by his own testimony. The very day default judgment was taken was the day he mailed his letter to an attorney in another city. It was by this letter that the attorney was employed to represent the appellants. The attorney could not have filed an answer in time to prevent default judgment if the appellees exercised rights to which the adjuster had agreed. The adjuster knew and understood the fact. He either intended to do what he did do or was consciously indifferent to whether the attorney employed would have time to file an answer to foreclose appel-lees’ entitlement. At least the trial court was entitled to so conclude. I perceive no abuse of discretion by the trial court in refusing to grant a new trial.
I would affirm the judgment.