(dissenting).
The law with regard to bills of review as it has existed since the beginning of Texas jurisprudence has been changed by the majority opinion herein.
A bill of review is an equitable proceeding and is so recognized by the majority. Heretofore there has been a clearly recognized distinction between a bill of review and a motion for new trial.
All emphasis herein is supplied by the writer.
As late as 1961, in the case of Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, in a unanimous opinion, this Court held that after the time- prescribed in Rule 329-b, *37Texas Rules of Civil Procedure, that a judgment should become final, any action of the trial judge was absolutely void, and that a writ of mandamus would be issued, ordering the trial judge to expunge the order.
Also, in 1961, this Court had before it the case of McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, which involved the question whether the trial court, after the expiration of thirty days from the date of judgment and with no motion for new trial being filed, had the power to set aside a default judgment rendered against a party not served with process, and, therefore, the trial court had no jurisdiction over such non-served party. In a unanimous opinion, this Court said:
“Accordingly, we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process.”
Further this Court said:
“Our construction of the Rule will give a diligent defendant with a meritorious defense every opportunity to protect himself against an unwarranted default judgment.”
In the case at bar, it is undisputed that the defendant in the main suit, Mr. Hanks, was duly and legally served by a legal and proper citation commanding him “to appear by filing a zvritten answer to the plaintiff’s petition, at or before 10:00 o’clock A.M. of the Monday next after the expiration of 20 days after the date of service thereof * * The record shows that was not the first citation served on Hanks, but that there had been at least two other and different suits filed against him and process served on him prior to the service of this citation.
The provision of “to appear by filing a written answer to the plaintiff’s petition” was inserted after this Court’s decision in the Hagedorn case (226 S.W.2d 996) and for the very purpose of preventing those served seeking to justify their not filing a written answer within the time prescribed by law.
In the present case no answer was filed by appearance day plus approximately one week thereafter, and there is no claim made by petitioner Hanks that he was prevented from filing an answer at any time, either before or after appearance day by any action or conduct of plaintiff or his attorney, nor by any conduct, information or action of the clerk’s office until May 25th — which was the ninth day after appearance day.
Further, there is no showing that the information that no judgment had been taken, given by the clerk’s office in answer to the first telephone call made by Hanks’ attorney around 11:00 A.M. was not true and correct. The hour of the taking of the default judgment is not in this record. Even though informed by the clerk that time was ripe for a judgment the morning of May 25th, and even though the name and residence of the plaintiff’s attorney was at that time known, as well as the name of the judge presiding over the court where the action was pending, no effort was made to have the court clerk enter the name of defendant’s attorney on the judge’s trial docket, or to contact plaintiff’s attorney or the trial judge and inform both or either of them that an answer for defendant Hanks was being filed. Any one of the three last above mentioned actions would have prevented the taking of a default judgment, or would have informed defendant that a default judgment had been taken that day.
The law prior to the decision in this case, required in bill of review cases, three very clear, simple, easily understood and univer*38sally and unanimously recognized things to exist, viz: (1) a meritorious defense to the cause of action alleged to support the judgment — and for this case we can assume such a defense was pleaded by Hanks, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party — and here there is no contention, allegation by pleading or proof of this requisite and necessary element; (3) unmixed with any fault or negligence of his own. Here the majority has set ¿side this third test and has changed it to read “that the failure to answer [was] not intentional or the result of conscious indifference.”
In connection with the last above test, the majority holds as a matter of law that under all the circumstances of this case, Mr. Hanks misplacing his citation and paying no attention to it was not conscious indifference or intentional failure to answer by appearance day. There is no finding by the trial court to this effect. The findings of the trial court are that Mr. Hanks was not negligent in permitting the default judgment to be taken against him; that Jerry Hanks used due diligence to prevent the judgment being had against him after he learned that the accident or mistake had occurred. It is interesting to note that Mr. Hanks in his testimony swore that he thought he had plenty of time to file an answer — not that when he misplaced the citation, he forgot about the suit. All the findings of the trial court were to the effect that Mr. Hanks was without fault and not negligent, because of losing the citation. Such conduct as misplacing the citation, or forgetting about it, has been held to be negligence prior to this holding. Woods v. Gamboa (Tex.Civ.App., 1950, writ refused, n. r. e.), 229 S.W.2d 1021; Banks v. Crawford (Tex.Civ.App., 1959, writ refused, n. r. e.), 330 S.W.2d 243.
The three requisites to be pleaded and proved as set out in the Hagedorn case were not original with the court in that case. These three requisites were first mentioned in the jurisprudence of this State in the case of Goss v. McClaren, 17 Tex. 107 (1856). See also Plummer v. Power, 29 Tex. 6 (1867); Johnson v. Templeton, 60 Tex. 238 (1883); Nichols v. Dibrell, 61 Tex. 539 (1884) ; Morris v. Edwards, 62 Tex. 205 (1884) ; Buchanan v. Bilger, 64 Tex. 589 (1885) ; Harn v. Phelps, 65 Tex. 592 (1886) ; McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357 (1887); Harris v. Musgrave, 72 Tex. 18, 9 S.W. 90 (1880) ; Merrill v. Roberts, 78 Tex. 28, 14 S.W. 254 (1890); Hammond v. Atlee, 15 Tex.Civ.App. 267, 39 S.W. 600 (1897, writ denied); Ayres v. Parrish, 15 Tex.Civ.App. 541, 40 S.W. 435 (1897, writ denied) ; McCorkle v. Everett, 16 Tex.Civ.App. 552, 41 S.W. 136 (1897, writ denied) ; Wilson v. Smith, 17 Tex.Civ.App. 188, 43 S.W. 1086 (1897, writ dismissed) ; Ames Iron Works v. Chinn, 20 Tex.Civ.App. 382, 49 S.W. 665 (1899, writ dismissed, w. o. j.); Wilson v. Woodward, 54 S.W. 385 (Tex.Civ.App., 1899, n. w. h.) ; Bergstrom v. Kiel, 28 Tex.Civ.App. 532, 67 S.W. 781 (1902, writ denied); Crosby v. Di Palma, 141 S.W. 321 (Tex.Civ.App., 1911, writ denied) ; McCamant v. McCamant, 187 S.W. 1096 (Tex.Civ.App., 1916, n. w. h.); First National Bank of Big Spring v. Hartzog, 192 S.W. 363 (Tex.Civ. App., 1917, n. w. h.) ; Reed & Reed v. McKee, 204 S.W. 717 (Tex.Civ.App., 1918, n. w. h.); Drinkard v. Jenkins, 207 S.W. 353 (Tex.Civ.App., 1918, writ dismd.); Bain v. Coats, 244 S.W. 130 (Com. of App., 1922); Davis v. Cox, 4 S.W.2d 1008 (Tex.Civ.App., 1928; writ dismissed) ; Gehret v. Hetkes, 36 S.W.2d 700 (Tex.Comm.App., opinion adopted, 1929); Maytag Southwestern Co. v. Thornton, 20 S.W.2d 383 (Tex.Civ.App., 1929, writ dismd.) ; Humphrey v. Harrell, 29 S.W.2d 963 (Tex.Comm.App., 1930); Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723 (1930); Empire Gas & Fuel Co. v. Noble, 36 S.W.2d 451 (Tex.Comm.App., 1931); Stewart v. Byrne, 42 S.W.2d 234 (Tex.Comm.App., 1931) ; Smith v. Ferrell (Comm. of App., 1932), 44 S.W.2d 962 (1, 2) and (7), opinion expressly approved by Supreme Court; Winters Mutual Aid Ass'n, Circle No. 2 v. Reddin (Comm. of App., 1932), 49 S.W.2d *391095 (4, 5) approved by Supreme Court; Honey v. Wood, 46 S.W.2d 334 (Tex.Civ. App., 1934, n. w. h.) ; Texas Employers’ Ins. Ass’n v. Arnold; 126 Tex. 466, 88 S.W. 2d 473 (1935); Mann v. Risher (1938), 131 Tex. 498, 116 S.W.2d 692(5); Garcia v. Jones, 155 S.W.2d 671 (Tex.Civ.App., 1941, writ refused, w. o. m.) ; Grayson v. Johnson, 181 S.W.2d 312 (Tex.Civ.App., 1944, n. w. h.) ; Kelly v. Wright (1945), 144 Tex. 114, 188 S.W.2d 983(6) ; Garcia v. Ramos, (Tex.Civ.App., 1948, writ refused), 208 S.W.2d 111(1); Garza v. King (Tex.Civ. App., 1950, writ ref.), 233 S.W.2d 884; Smith v. City of Dallas, 248 S.W.2d 832 (Tex.Civ.App., 1952, n. w. h.) ; Banks v. Crawford (Tex.Civ.App., 1959, writ refused, n.r. e.), 330 S.W.2d 243; Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234(1), (1961); Chapa v. Wirth, 343 S.W.2d 936 (Tex.Civ.App., 1961, n. w. h.) ; Moore v. Mathis, 369 S.W.2d 450 (Tex.Civ.App., 1963, writ refused, n. r. e.); 3 Ala.Law Review, 224, 226, 1950-51.
The above are a few of the myriad of authorities, but I do not want to unduly lengthen this opinion.
There has also been a well-recognized distinction between the pleadings and proof necessary to secure a retrial on a motion for new trial and on a bill of review. Many of the cases cited immediately above set out the distinction. A clear statement of this difference, and the reason therefor, is found in the case of Smith v. Ferrell (Comm. of App., 1932), 44 S.W.2d 962 (1 & 2) & (7), opinion expressly approved by the Supreme Court.
“It has been well said that in ordinary cases the trial judge has a certain amount of discretion in granting new trials during the term. However, no such discretion can be exercised after the expiration of the term. The judgment then becomes a vested right which can only be divested by a direct proceeding filed for that purpose, and, when such a proceeding is resorted to, the person presenting the bill must bring himself strictly within the rules of law providing for relief in such cases. It is not enough that he plead and prove that he had a meritorious defense in the first instance, but he must go further and show that he was then free from negligence
The case of State v. Newman (Tex.Civ.App., 1951, writ refused), 237 S.W.2d 417, expressly refused to recognize as a test in a bill of review case that the failure to file an answer before judgment taken could be excused by showing such failure was not intentional nor the result of conscious indifference. The trial court found that the failure of the defendant to file an answer before default was not intentional' nor the result of conscious indifference on his part, but was due to a mistake of an accident which prevented him from making his defense, etc., etc.
The court said:
“No intimation is made that Mr. Newman was prevented from making his defense by the fraud, accident or wrongful act of plaintiff; or that there was not any fault or negligence of the defendant, and under all of the circumstances and facts in this case it is apparent that the'failure of the defendant to file an answer was occasioned by the negligence or lack of diligence by the defendant and/or his attorneys) and he cannot be relieved of the effect of the judgment.”
That part of the Hagedorn case quoted by the majority opinion holds only that the reliance on the clerk’s statements as to the contents of his official records, is an excuse for the defendant’s negligence in not filing a motion for new trial, nor for failure to file an answer by appearance day plus eight days. Hagedorn does not hold that misinformation given by the clerk can be imputed to the plaintiff herein so as to satisfy the second well-recognized requirement, that defendant was prevented from making his defense by the fraud, accident or wrongful *40act of plaintiff herein. As we have said before, it is affirmatively shown that plaintiff was guilty of no such conduct, but on the contrary the record shows that plaintiff’s attorney on the eighth day after appearance day sent word to defendant Hanks that no answer had been filed and a default judgment would be taken. In spite of this information received by plaintiff on May 24th, no answer was filed until May 26th.
Although the majority relies solely on Hagedorn as authority for its holding that misinformation from the court clerk — unmixed with any fault of the opposite party— will entitle a negligent defendant to set aside a default judgment after term time, it overlooks the following holding in Hage-dorn : “Again, Hagedorn cannot prevail be-because he has not shown that he was prevented from making his defense to the Alexanders’ suit by their fraud or wrongful act." This quote is just as much a declaration of the law as that part quoted in the majority opinion.
A bill of review is an equitable proceeding'and one of the fundamental maxims of equity is that “equity rewards the diligent, not one who has slept on his rights.”
In this case the majority has deprived an innocent plaintiff of a judgment of a court of record entered not on appearance day but on the ninth day thereafter and before an answer was filed. This judgment became a final judgment thirty days after its entry. Our rules and our decisions deny to a trial judge the right or jurisdiction to grant a new trial therein, but the majority opinion herein applies new trial rules to a bill of review, and affirms the trial court’s action granting a new trial and hearing the case.
I cannot bring myself to disregard the well-established precedents as set out in such a multitude of well reasoned opinions by this Court and by the Courts of Civil Appeals for more than one hundred years. The experience of this State has been that these rules are best in order that justice may prevail.
As said by this Court in Wear v. McCallum (1930), 119 Tex. 473, 33 S.W.2d 723, 725:
“A judgment by default in a trial court must be respected and upheld when there was no fraud or mistake in its procurement, and where fair and ample opportunity was afforded the defendant to controvert and contest on their merits the allegations of the plaintiff.”
I would affirm the judgment of the Court of Civil Appeals because it follows what was, at the time it was rendered, the well-established and never-questioned law of all the cases decided by all the courts of this State.