(dissenting).
I agree with the majority that Ward has “set up” a meritorious defense. By his affidavit he has made the proof required of him on this score, since he need make only a prima facie showing. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). My problem is with his proof of an excuse for failing to appear. It is not because he sets up an inadequate excuse; it is his failure to prove that his excuse of accident or mistake was in fact the reason for his failure to appear.
The proof in this record is as follows:
1. After an unsuccessful attempt by the Sheriff’s office to serve Ward, the papers show a return on the citation signed by a deputy constable certifying that service was made on Oliver Ward on October 21, 1971 at 5 o’clock p.m. at 3822 Chickering Street. That address is the place of Ward’s residence.
2. Oliver Ward by affidavit says:
I understand that I have been sued by David Nava in Cause No. 874,229 and that a default judgment has been entered against me in the 152nd District Court. I further understand that the citation in-dicats (sic) that I was served personally on or about October 21, 1971. This is not true. No sheriff or constable has ever served any papers of any kind on me personally in this case. I first learned that there was a lawsuit when someone called me on Friday, November 19, 1971, and asked about the lawsuit. I do not remember the person’s name who made this call. That weekend I looked to see if there were any suit papers at my house and on Sunday I found a petition. I do not know how this petition got in my house. I asked my wife and she had never been served with it and I am certain that I was not served with it. Most likely, it was left in my mailbox and my kids brought in the petition with the mail and no one ever showed it to me.
I intended to take it to my insurance agent on November 22, but forgot and left it at home and finally took it to him on November 23, 1971.
It was only through inadvertence and mistake that these papers were not turned over to my insurance agent and an answer filed on my behalf. It certainly was not intentional that I did not have an answer to this lawsuit filed since the accident was certainly not my fault. Had I known that these papers had been left at my house sooner I would have taken some action immediately but no one ever showed them to me and I did not know there was any reason to look for the suit papers until someone called me about it as I indicated. Further, had I been served properly by the sheriff I most certainly would have turned the papers immediately over to my insurance agent and an answer would have been filed on time. In fact, had the sheriff served me properly or had I known about the suit papers being at my house earlier, an answer would have *740been filed before the answer date but it was for these reasons and not because of any conscious indifference that there was no answer on file.
It has not been the law that a trial judge must grant a new trial upon the setting up of an excuse — whether or not the excuse set up was in fact the explanation for the failure to appear. I agree with those courts which allow the trial judge to determine the truth of the circumstances and of the defendant’s mental attitude and reasons for not appearing. Young v. Snowcon, Inc., 463 S.W.2d 225 (Tex.Civ.App.1971, no writ); Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.1956, no writ).
Was Ward served by the constable or did the citation come in with the mail and lie around his house unseen for a month ? And how was it that the nameless caller precipitated a search for the papers — at Ward’s home, of all places — instead of an attempt to file an appearance, since there was still time for that appearance ? I submit that the trial judge was entitled to disbelieve Ward on this record and to conclude either that he proved no excuse or that the record indicated that he was served personally on October 21 and then failed to appear because of conscious indifference.
The majority regard the question of personal service as one of fact which the trial judge is entitled to decide.' They regard the personal service upon Ward on October 21 as established. Then what excuse has Ward set up for his inaction until November 19? And why must the other statements of Ward be assumed-to be true fact in the face of the trial court’s contrary determination?
I would affirm the trial court’s judgment.
WALKER and POPE, JJ., join in this dissent.