(dissenting).
This is a bill of review brought by appellant herein to set aside a default judgment. The Trial Court entered summary judgment that appellant take nothing. Ap-pellees, Kado Paul, Sidney Paul and four others filed suit in trespass to try title against appellant for certain land, on 25 July 1956, claiming such land as heirs of Ed Paul (deceased), who they alleged and proved procured the land by warranty deed dated 20 June 1929, and recorded in Liberty County Clerk’s office 6 December 1929. Appellant lives in California and was served the regular nonresident notice commanding her to appear by “filing a written answer to the plaintiffs’ petition at or before 10 o’clock A.M. of the Monday next after the expiration of 20 days from the service hereof, before the Honorable District Court of Liberty County, Texas, at the Court House in Liberty, Texas.” Such notice was signed by the Clerk of the District Court of Liberty County and had attached thereto a copy of the plaintiffs’ petition. Such is regular in every respect (Rules 101, 106, 107, 108 Texas Rules of Civil Procedure) and told her exactly what to do. Such citation was dated 25 July 1956, and served on Ezzie Lyons on 6 August 1956 by a Deputy Sher*952iff in California. Thereafter on 10 August 1956 Ezzie Lyons wrote the letter quoted in the majority opinion, to the attorney for appellees, and told him she owned ½ of the land, she having furnished 1/3 of the money for its purchase price. She in effect alleged to the appellees’ attorney her contentions in the matter and closed with a statement that she had hoped that the matter could be settled out of court, but that if appellees wanted to fight the case that was up to them. Appellees’ attorney did nothing upon receipt of the foregoing letter. Appellant did not file an answer and appellees’ attorney took judgment by default for appellees against- appellant on 10 September 1956. Some months later appellant filed the case at bar, in the nature of a bill of review to set aside the 10 September 1956 default judgment taken against her. Appellees made motion for summary judgment and the Trial Court granted such motion, rendering summary judgment that appellant take nothing on her bill of review action. Appellant appealed, and the majority of this court has reversed and remanded the cause, holding in effect that appellant’s writing the letter to appellees’ lawyer tenders a jury issue as to whether she was free from negligence in not filing a timely answer; and further holding that appellees’ attorney was under a legal duty to reply to appellant’s letter and return her enclosures to her, and that his failure to do so tendered a jury issue as to whether appellees’ attorney was guilty of extrinsic fraud.
The Supreme Court’s opinion in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998, is determinative of this case. In such case Hagedorn was sued by Alexander for damages to Alexander’s car, occasioned when Alexander’s car ran into a mule alleged to be Hagedorn’s, which was on the highway in violation of the stock laws. Hagedorn was served with citation and went to the courthouse and talked with the District Clerk. The Clerk told Hage-dorn that court was not in session and assured him he would notify him further when he was to come in. Hagedorn filed no answer and Alexander took judgment by default against Hagedorn. Hagedorn filed bill of review to set aside the default judgment. The Supreme Court, in reversing judgments of the District Court and Court of Civil Appeals, 220 S.W.2d 196, which set aside the default judgment against Hagedorn, said:
“Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action * * * (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.”
(In the Hagedorn case it was found that Hagedorn had a meritorious defense to the cause of action, and in the case at bar it has been stipulated that for this proceeding only appellant is deemed to have-a meritorious defense to the cause of action).
The court further said in the Hagedorn case:
“Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review, seeking relief from judgments ‘are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. * * * ‘Endless litigation in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.’ ” * * * (226 S.W.2d at page 998).
*953“Reliance upon the statements or promises of third persons even though they may occupy some official position or seem to be in a position to have better information than the party himself, does not ordinarily entitle to relief for failing to make a defense” * * * (226 S.W.2d at page 998).
“Under any other rule it would be very difficult if not impossible for a trial court to function in the field of default judgments. For it would mean that before the court could enter a valid judgment against a non-answering defendant, he would have to call the clerk, the sheriff and perhaps all other courthouse officials and their deputies to ascertain whether any of them had made any extra-official agreement to notify the defendant when his case would be on call * * *. Obviously, such a situation would be intolerable” * * * (226 S.W.2d at page 998).
“Again, Hagedorn cannot prevail because he has not shown that he was prevented from making his defense to the Alexanders’ suit by their fraud or wrongful act.” (226 S.W.2d at page 1001).
While Ezzie Lyons did not request appel-lees’ lawyer to do anything, or to reply to her letter — but had she done so the Hage-■dorn case is a complete answer:
“When respondent requested the district clerk to notify him when he should return to court to defend the suit he was requesting the clerk to undertake something that the latter was in no sense required to do in his official capacity. So, as to that, the clerk became respondent’s agent, and negligence of the clerk must be charged to respondent, it became his own negligence.” 226 S.W.2d at page 1001.
It seems that the Hagedorn case is here applicable. It would indeed be very difficult for a Trial Court to function in the field of default judgments if, before a court could enter a valid judgment against a non-answering defendant, he would have to check with the plaintiff’s attorney to see if the defendant had in any manner communicated with him; the nature of the communication, if any; and whether plaintiff’s attorney had replied to defendant, and if so the nature of the reply communication.
The case at bar is actually a stronger case for denying the bill of review than was the Hagedorn case. In the Hagedorn case Hagedorn filed no answer because he was assured by the District Clerk that he would be notified further. In the case at bar Ezzie Lyons had not been assured anything by anyone. The most that can be said of her position is that she perhaps thought, but erroneously so, that she had filed an answer in compliance with the citation.
Appellant’s brief contends that had ap-pellees’ counsel informed the Trial Court of the letter he had received from Ezzie Lyons, that the Trial Court probably would not have entered the default judgment. The majority opinion states, that when ap-pellees’ counsel moved for the default judgment he impliedly represented to the Trial Court that appellant did not intend to defend the suit and had not answered and to this extent misled the court. Had appellees’ counsel told the Trial Court of Ezzie Lyons’ letter, the Trial Court would have had to enter the same judgment that it did because no answer was filed in the case. But, in any event, the Trial Cotirt had the matter voith a full disclosure of all the facts, before him on the bill of review to set aside the default judgment, and with all the facts before him, refused to set aside the default judgment.
We now revert to Item 2, supra, of what a litigant must allege and prove to set aside a judgment by bill of review. Was appellant prevented from filing her answer by fraud, accident, or the wrongful act of ap-pellees’ attorney? Appellees’ attorney did nothing. Was he under a legal duty to reply to Ezzie Lyons’ letter and return her enclosures to her? The majority opinion *954says yes. I know of no basis for holding such to be his legal duty. In the absence of such being his legal duty, then his failure to reply to the letter cannot make a jury issue, as to whether appellant was prevented from filing her answer by the fraud or wrongful act of appellees’ attorney. The impact of the majority holding herein would be tremendous upon future litigation. Under such, no attorney will be safe in taking a default judgment if he has been contacted in person, by phone, or by letter, by the party sued and who has been served, (but who files no answer). Indeed almost all a defendant who has been served need do is to write to the plaintiff’s attorney and allege to him facts which, if true, constitute a defense to the action — go his way, and any default judgment taken can be later set aside.
In addition to alleging and proving that she was prevented from filing timely answer by the fraud or wrongful act of the opposite party, appellant must allege and prove that such was “unmixed with any fault or negligence of her own.” (Item 3, supra).
The majority opinion (on page 950 of 321 S.W.2d) states that appellant was not negligent per se, etc., in writing to appel-lees’ lawyer. Perhaps this is true — but, the negligence referred to in the Hagedorn case and which must be negatived, is negligence on the part of Ezzie Lyons in not filing her answer in the case, as called for in the citation. Can the fact that Ezzie Lyons wrote a letter to appellees’ lawyer and then filed no answer, (presumably waiting for a reply from him), excuse her from not filing a timely answer? Can the fact that Ezzie Lyons mistakenly thought she was filing her answer (which does not appear from a reading of her letter) in writing to appel-lees’ counsel, excuse her from not filing a timely answer? The citation with which she was served told her in plain language of easy understanding when, where, and with whom she was required to file her answer. Ezzie Lyons can read and write. Such circumstances can no more excuse appellant from not filing her answer in the case, as called for by the citation, than did the District Clerk’s promise of further notice, excuse Mr. Hagedorn in the Hagedorn case.
It appears that: 1) Appellees’ attorney was under no legal duty to answer appellant’s letter, in which event he could not have prevented her from answering through extrinsic fraud or wrongful act; 2) Appellant is guilty of negligence under the facts, in riot filing a timely answer as called for by the citation; 3) the majority opinion is in conflict with Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; and with Garcia v. Ramos, Tex.Civ.App., 208 S.W.2d 111, W/E Refused.
The judgment of the Trial Court should be affirmed.