(dissenting).
I respectfully but vigorously dissent.
It causes me great concern to see this Court condone and approve the validity and finality of a judgment rendered by a trial court in a contested case which was set for trial within less than an hour after the attorney for plaintiff requested the court to do so and without any notice whatever to the defendant or its counsel.
I consider the trial court’s hurried “setting” without notice and the ex parte trial to be contrary to the fundamental principles of fairness and justice embodied in our system of judicial administration and clearly in violation of Rule 330(b) adopted by this Court to prevent judgments of this nature against a party without allowing him an opportunity to be heard.1 The majority opinion takes note of a further injustice occasioned by the district clerk’s violation of Rule 306d. The clerk failed to mail a notice of the judgment to the defendant until after it was too late to file a motion for new trial under Rule 329b and thus perfect its appeal. Until receipt of this late notice, it is undisputed that neither the defendant nor its attorney had any notice or knowledge of the so-called setting or judgment.
Rendering a judgment against a party without an opportunity to be heard has been condemned. Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914 (1876). In that case Mr. Justice Field said that a judicial determination under such circumstances “is not entitled to respect . . . .” He quoted with approval from another case which said that a hearing,
“where no notice, written or constructive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding.”
' My concern is not with this case alone. The granting of a writ of mandamus requiring the trial court to set aside its judgment and restore this case to the docket would not only serve to remedy the injustice in this case, but it would serve to deter rather than condone similar violations of Rule 330(b) in future cases. Such action in this case would not clash with our usual concern about the importance of protecting the finality of judgments. Here, there was a prompt and direct attack on the validity of the judgment, with no delay, laches, es-toppel, or intervention of claims or rights of third parties. Within the thirty-day period before the judgment became final under Rule 330(a), the aggrieved party 'sought (and was denied) relief from the judgment by the trial court in a motion which contained every necessary element of a bill of review; it then moved for leave to file its petition for writ of mandamus, which was granted by this Court. Concurrently, this Court issued an order staying the execution and further proceedings under the judgment, all of which occurred within the thirty-day period after the judgment was rendered by the trial court.
It has been suggested that our mandamus jurisdiction should be exercised only *638when we are presented with matters of greater statewide concern. At a time when respect for our system of law is called for from all sides and the lack of it too often evidenced, no matter is of greater import to the people of this State than the proper functioning of our judicial system. The very thought of a district judge, on the ex parte motion of one party, setting a contested case for trial within less than an hour; then conducting the trial without any notice whatever to the opposing counsel, thus denying him and his client the right to be heard; the loss of the right of appeal because of the clerk’s failure to follow the Rule for timely notice of the judgment; and then the trial court’s refusal to grant relief from the judgment; is enough to shock the conscience and confidence of those who respect our system of justice according to law. The instant case involves only a judgment against Plains Growers, Inc. on a $16,342 promissory note. Future cases, however, may involve settings without notice and judgments without notice, deciding the custody of a child, damages which would wipe out the savings of a lifetime, the loss of a home, or civil rights of individual citizens.
I interpret Rule 330(b) as prohibiting this type of “hurried-up” trial without notice and reasonable time for preparation, and therefore disagree with the majority’s holding that: “The early setting and trial without further notice to defendant or its counsel does not violate any statute or rule . ” That holding is based upon an interpretation of Rule 330(b) which is contrary to its spirit and purpose. It apparently rests upon its punctuation rather than its manifest purpose. The portion pertinent to contested cases reads:
“On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of either party, or on the court’s own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation.” (Emphasis supplied.)
It is apparent from this Rule that its primary purpose is to provide for setting contested cases for trial in a manner which will give the opposing parties a reasonable timf to prepare for trial. The first five phrasbs,^which are directory, provide that on the first Monday of each calendar month the trial court may, “and as far as practicable shall,” set for the next calendar month all contested cases which are requested to be set. Clearly, that portion of the Rule is to give the contesting parties a month within which to prepare for trial. If plaintiff’s request for a setting had been made under that portion of the Rule, the defendant would have had an opportunity to prepare and to be heard, assuming that the trial court follows Rule 245, relative to placing cases on the calendar “upon request of a party and notice to the other parties,” or even assuming arguendo that the defendant would be charged with notice of a setting on a date during the succeeding month when requested by his adversary on the first Monday of the preceding calendar month.2
However, plaintiff’s motion for the setting of this case, made after 9:00 a. m. on *639the first Monday in January of 1974, was not under the initial general provisions of the above Rule. On the contrary, it was for an advanced setting at 10:00 a. m. on the same day, which necessarily placed it within the exceptions and restrictions of the latter part of the Rule, under which the trial court may set cases “at any time so as to allow the parties reasonable time for preparation.” The enumerated exceptions are (1) by agreement of the parties, (2) on the motion of either party, and (3) on the court’s own motion. Immediately following the last exception are the words “with notice to the parties.”
Respondent contends, and evidently the majority agrees, that because of a comma at the end of the phrase “or on the motion of either party” or the absence of a comma at the end of the phrase “or on the court’s own motion,” the requirement of notice to the parties applies only when the court makes an earlier setting on its own motion, and not when (as in this case) the court grants an earlier setting on the motion of an adverse party. That interpretation, based upon the placement of punctuation marks, leads to an incongruous and unjust result directly contrary to the underlying purpose and intent of that portion of the Rule — settings at any time (even less than a calendar month ahead) with notice to the parties so as to allow them reasonable time for preparation.
Is it reasonable to believe that the enactment of this Rule, first by the Legislature as a statute 3 and then almost verbatim by this Court, was intended to provide for notice to the parties only when the court sets a case on its own motion and not when he sets it on the motion of an adversary party? Obviously, it is just as important, if not more so, for the non-requesting party to have notice of an earlier setting when moved for by his adversary. Otherwise, with no notice, how could the non-requesting party be allowed “reasonable time for preparation,” as the Rule requires? Surely the last phrase “so as to allow the parties reasonable time for preparation” modifies at least the preceding phrases relating to earlier settings. If that be true, then the only reasonable interpretation within the spirit and purpose of the latter portion of the Rule is that “with notice to the parties” requires notice whether or not the early setting was on motion of one party or on the court’s own motion.4
Since at least 1967, the text writer or compiler of Time Table for Lawyers Under the Rules, which is published in the front of Vol. 1 of Vernon’s Texas Rules of Civil Procedure, has given that interpretation to Rule 330(b) in the following words:
“On the first Monday of each month, as far as practicable, judge is required to set contested cases for trial during next calendar month, when request has been made for setting; but by agreement of parties, on motion, or on court’s own motion, cases may be set at any time on notice to the parties, allowing reasonable time for preparation.” 5
Our Rules, whether or not derived from statutes, have the same effect as statutes, and are subject to the rules of statutory construction. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); Sutherland, Statutory Construction, Vol. 2 § 31.06 (4th ed. 1973). One of the cardinal rules of statutory construction is that “statutes
*640should be interpreted so as to effectuate their manifested purpose or object.” Sutherland, supra, Vol. 2A § 58.06. Punctuation or lack of it should never prevail over the manifest reason and obvious purpose of the law. Sutherland devotes considerable space to the effect (or lack of effect) to be given to punctuation in the interpretation of statutes, tracing the history from the time when parliamentary enactments were not punctuated to decisions of our highest courts declaring that punctuation is no part of an Act. Sutherland, supra, Vol. 2A § 47.15. The text states, however:
“The better rule is that punctuation is a part of the act and that it may be considered in the interpretation of the act but may not be used to create doubt or to distort or defeat the intention of the legislature. When the intent is uncertain, punctuation, if it affords some indication of the true intention, may be looked to as an aid.
“On the other hand, if the act as originally punctuated does not reflect what is otherwise indicated to be the true legislative purpose, in order to effectuate such purpose the punctuation may be disregarded, transposed, or the act may be repunctuated.”
The same text, Vol. 3 § 67.02, states:
“There is widespread preference for the method of interpreting procedural statutes which insures that a case will not be disposed of on the basis of procedural technicalities but will be considered on its merits and decided on the basis of the substantive rights of the parties. Mere technicalities should not be permitted to impede the trial of a case, and so an interpretation which is highly technical, or results in absurdity or injustice is to be avoided. ... an interpretation allowing one litigant to take advantage of or cast harsh burdens upon the other is avoided where possible, and a construction which will avert bias and secure a fair trial is highly favored.”
We may look further to our own Rules 1 and 245 as to the purpose and manner in which Rule 330(b) should be interpreted and applied. Rule 1 provides:
“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.”
Rule 245 provides:
“The court shall provide by rule for the placing of actions upon the trial calendar.
“(a) without request of the parties or
“(b) upon request of a party and notice to the other parties or
“(c) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by any statute or rule.” (Emphasis supplied.)
Rules 245, 246 and 247 are said by the majority to govern the setting and trial of cases in district courts with noncontinuous terms and in county courts, but there is no such limiting language in those rules. All district courts in Texas have had continuous terms since Section 1 of Article 1919 became effective January 1, 1955, but Rules 245, 246 and 247 have not been changed as to district courts, and the applicable portions thereof which do not conflict with Rule 330 should continue to apply. See Rule 331. The holding to the contrary will no doubt come as a surprise to a great majority of the district courts which have adopted and filed local rules. See Local Rules of the District Courts of Texas, compiled by the Texas Civil Judicial Council, April 15, 1974. A careful examination reveals that with but few excep*641tions, they have followed both Rule 245 and Rule 330(b) in providing for the placing of actions upon their trial calendars. The majority require notice to all parties of any request for settings. Typical is the following provision from Rule 3 of the Local Rules of the District Courts of Harris County:
“ . . . Before the request for setting is filed, a copy thereof shall be served upon all counsel of record in the case and all parties not represented by counsel .... The party requesting the setting of a case for trial on the merits shall certify on his request [among other things] that all parties and counsel of record have been supplied with copies of the request for settings.” Local Rules Compilation, supra, 151-152.
In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959), the Court made passing references to Rules 245, 246 and 247 as being applicable in district courts of non continuous terms and to Rule 330(b) as applying to district courts having continuous terms, but there was no holding that none of the provisions of Rules 245 et seq. are applicable to continuous term courts. The important comparison applicable to this case was the Court’s statement that “[t]hey differ only slightly from Rule 330(b) . . . . ” The Court concluded:
“It is the purpose of the Rule to provide a party to a contested case with his day in court.”
Unless we are to allow a comma, or the absence of a comma, to control fhe purpose and object of the latter portion of Rule 330(b), it seems that the only reasonable interpretation is that an earlier setting, whether on motion of a party or on the court’s own motion, requires notice “so as to allow the parties reasonable time for preparation.” In view of the contrary interpretation set forth in the majority opinion, I recommend that Rule 330(b) be amended so as to eliminate the comma after the words “either party.”
Since the present punctuation does not hinder my interpretation of the Rule as presently requiring notice to the defendant of the advanced setting, I would hold the trial court’s setting and judgment in this case to be in violation of Rule 330(b).
In any event, there can be no doubt that the trial court violated that portion of Rule 330(f) which provides that these earlier settings, whether on the motion of either party or on the court’s own motion, should be “at a time so as to allow the parties reasonable time for preparation.” That portion of the Rule has been held to be mandatory. TEIA v. Yother, 306 S.W.2d 730 (Tex.Civ.App.1957, writ ref. n. r. e.).6 The majority opinion does not deal with that requirement or explain how it was met by a setting within less than an hour and without notice. Less than an hour is hardly time for a lawyer officing at Hereford (31 miles away) to get himself and his witnesses to Canyon for the trial, even if notice of the setting had been in some manner “leaked” to him.
Actually, there was no way for notice to get to defendant’s counsel, except from the trial judge or plaintiff’s counsel, because they were the only ones who knew about the hurried-up setting. The record before us shows without dispute that the district clerk did not know about it; no setting was ever noted on the court’s docket sheet; and it was not on the court reporter’s typed list of cases which were actually set by the court on January 7. The trial court’s explanation for that (on the relator’s motion for new trial) was “the case doesn’t appear on the list here, because anybody knows it takes a little while to get things out, and this matter was already dis*642posed of before the list of settings was drawn up . . . . ”
In this respect, there is not much difference between no setting at all in Freeman v. Freeman, supra, and the setting without notice and without allowing a reasonable time for preparation in the present case. Both were in violation of mandatory provisions of Rule 330(b). Although the position of the parties was somewhat different in Freeman, the situation is analogous in that one of the vices which caused the Court to hold the judgment void in Freeman was the lack of a setting as required by Rule 330(b). In that case, this Court said:
“ . . . Judgments are void for lack of power in courts to render them when they are rendered contrary to constitutional or valid statutory prohibition or outside limiting constitutional or statutory authority. . . . Our Rules of Procedure have the same force and effect as statutes. If a statute had provided that all contested cases should, on appearance day, be set for trial and that no default judgment could be rendered in such a case until the day of its setting, we would not hesitate to declare void a judgment rendered in violation of the statute. That, in effect, is what Rule 330(b) provides. It is the purpose of the Rule to provide a party to a contested case with his day in court. By way of precedent, we have declared void a judgment of injunction rendered without the filing of a bond as required by Rule 684, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. ...”
It has been the policy of this Court to accept and exercise our mandamus jurisdiction in cases involving direct attacks on void or invalid judgments of district courts and to grant conditional writs requiring that they be expunged or set aside. See Dikeman v. Snell, 490 S.W.2d 183 (Tex.1973); Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28 (Tex.1971); McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971); and cases cited in those opinions. The remedy is especially appropriate where there is no other remedy “equally convenient, beneficial, and effective as mandamus.” Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); G. C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897 (1919).
Obviously, the defendant in this case is left without any equally effective remedy. I would conditionally grant the writ of mandamus, ordering the judgment of January 7, 1974, to be set aside.
In view of the broad holding of the majority that the Texas Rules of Civil Procedure as promulgated by this Court do not now require notice to all parties of trial settings made by district courts upon the request or motion of an adverse party, I recommend that this Court initiate a study of rule changes which will provide for (1) a uniform system of reasonable notice of all trial settings, and (2) a more adequate remedy than bill of review to set aside a judgment and restore the case to the docket when it has been set and tried without notice to an adverse party. See analogous amendment to Rule 165a, effective February 1, 1973, with respect to reinstatement of cases dismissed without notice, and Rule 60, Federal Rules of Civil Procedure.
McGEE, DENTON and SAM D. JOHNSON, JJ., join in this dissent.
. All citations to Rules refer to the Texas Rules of Civil Procedure.
. It should be noted that October 1, 1973 was the first docket call after appearance day for this case. No request for a setting was made on that date. Neither was it listed on the next docket call of January 7, 1974, such list being confined to older eases which were required to be set, continued or dismissed for want of prosecution. At the top of that list was typed: “Docket Call for the January Term of 47th District Court of Randall County will be at 9 :00 a. m., Monday, January 7, 1974. Jury weeks are scheduled for January 29, March 5, and April 9. Non-jury weeks are scheduled for February 20 and March 19.” Defendant contends that anyone who received that notice would have been led to believe that January 29 was the earliest date his case would have been set for trial.
. Subdivision 18, Article 2092, Tex.Rev.Civ. Stat., 1925.
. This was the interpretation given the precise words while they were in statutory form. In Peaslee-Gaulbert Co. v. Hughes, 79 S.W.2d 149 (Tex.Civ.App.1934, writ ref.), the court said, after quoting Subd. 18 of Article 2092 (now Rule 330(b)) : “Thus it is seen that cases are set for trial, either on request and by agreement of parties, or on motion of a party, or on the court’s own motion, with notice to the parties so as to allow a reasonable time for preparation.”
. 1 Vernon’s Texas Rules of Civil Procedure, CXXVIII-CXXIX. See also West Publishing Co. Desk Copy 1973, Texas Rules of Civil Procedure, pp. CV-CVI.
. See McDonald’s Texas Civil Practice § 10.-27 and Note 11, which reads in part: “Provision for setting contested cases ‘at any time’ is mandatory only in sense setting must be for date allowing parties, after notice, reasonable time to prepare for trial.”