Plains Growers, Inc. v. Jordan

ON MOTION FOR REHEARING

WALKER, Justice.

The opinion on motion for rehearing delivered on November 27, 1974, is withdrawn, and the following is substituted therefor:

In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, we said that Rules 245, 246 and 247 govern the setting and trial of cases in district courts with noncontinuous terms. This was reiterated in a footnote to the original opinion in the present case, where it was pointed out that all *643district courts in Texas now have continuous terms and are governed by Rule 330. The footnote further states that Rules 245, 246 and 247 continue to apply in county courts. Upon further consideration of the matter we have concluded that Rule 246 and perhaps some or all the provisions of Rule 247 also apply in district courts. Rule 246 was not involved in Freeman, and in our opinion the practice prescribed thereby is not inconsistent with the special practice and procedure prescribed by Rule 330. See Rule 331. We adhere to the view that Rule 245 has no application to district courts, which are governed by Rule 330, but continues to apply in county courts. Since Rule 247 is not involved in the present case, we do not attempt to decide whether and to what extent it must yield to the provisions of Rule 330.

Defendant’s motion for rehearing convinces us that our original opinion should have dealt in more detail with the facts disclosed by the record and with the considerations that led to a denial of relief in this proceeding. It is contended that due process required that defendant be given formal notice of the trial setting and an opportunity thereafter to prepare for trial. Where, as here, there is no statute or rule to the contrary, parties over whom the court has properly obtained jurisdiction are expected to keep themselves informed of the time a case is set for trial and are not entitled to notice of the trial other than the setting of the case on the docket. See Mackay v. Charles W. Sexton Co., Tex.Civ.App., 469 S.W.2d 441 (no writ); Cage v. Cage, 5th Cir., 74 F.2d 377; Wetzel v. Birmingham Electric Co., 250 Ala. 267, 33 So.2d 882; Savage v. Stokes, 54 Idaho 109, 28 P.2d 900; Rubbelke v. Aebli, Mo., 340 S.W.2d 747; Johnson v. Bearden Plumbing & Heating Co., 170 Okl. 63, 38 P.2d 500; 53 Am.Jur, Trial § 10; 88 C.J.S. Trial § 11. The rationale of this rule has been recognized in Texas for many years. Jordan v. Corley, 42 Tex. 284, and other cases cited in original opinion.

Defendant was entitled, of course, to a reasonable opportunity to learn of the trial setting, and this it had. It was charged with notice of the regular call of the docket on January 7, 1974, and a statement by the trial court judge during the hearing on the motion for new trial indicates that the firm representing defendant, or at least its older members, had been familiar for many years with the practice of the court to hold docket call on the first day of the term. It also appears that a formal written reminder of the January, 1974, docket call was mailed to a member of the firm several months in advance.

There are seven members in the firm, and their offices are located in Hereford, Texas, which is about 31 miles from Canyon, the county seat of Randall County. The attorney of record for defendant was in his office all day of January 7. According to his testimony, he could have driven to Canyon in approximately 30 minutes at that time. A lawyer practicing with the firm, either a partner or an associate, was in the Randall County Courthouse attending a call of the county court criminal docket during the time the docket of the 47th District Court was being called. He testified that he had discussed his criminal cases with the district attorney prior to the call of the county court docket and that he could have been in the 47th District Court if he had known the docket was being called there.

Defendant had an ample opportunity to prepare for trial between the filing of the suit on August 3, 1973, and the trial on January 7, 1974. If defendant or its counsel had attended the docket call, time would doubtless have been allowed to arrange for the attendance of any witnesses needed at the trial. Defendant was not entitled to any additional time to otherwise prepare the case after it was placed on the trial calendar.

Defendant apparently assumes that formal notice of the setting would *644have been required and that the result of this mandamus proceeding would have been different if the case were governed by Rule 245. That is not correct. Rule 245 directs the trial court to provide by local rule for placing actions on the trial calendar without request of the parties or upon request of a- party and notice to other parties or in such other manner as the court deems expedient. A court governed by Rule 245 might properly promulgate a local rule providing for a regular call of the docket the first day of each term. The local rules of the 47th Judicial District Court were promulgated under the provisions of Rule 817. Regardless of whether the case is governed by Rule 245 or by Rule 330(b), it was incumbent upon defendant or its counsel either to attend the docket call or arrange for the clerk to notify them of the date of the setting by submitting to the clerk a request by mail accompanied by a return envelope properly stamped and addressed as provided in Rule 246. They did neither. According to the testimony of the clerk, it was her custom to comply with such a request when made. This is not to say that the course of events would necessarily have been different if the request had been made, because the clerk did not know of the setting or the trial. The record does not disclose whether the request would have come to the attention of the trial court.

Even though the interpretation of Rule 330(b) does turn on punctuation, it is clear that the rule as written does not require formal notice of the date of trial except where the case is set on the court’s own motion. It is equally clear that this Court has the power to say that the rule requires formal notice when a case is set at a regular call of the docket, but there are policy considerations that persuade us not to do so.

Under the provisions of Rule 329b, a judgment becomes final upon the expiration of 30 days from the rendition of judgment or order overruling a timely filed motion for new trial. After the expiration of that period, “the judgment cannot be set aside except by bill of review for sufficient cause.” The filing of the motion for new trial in the present case more than 10 days and less than 30 days after rendition of judgment did not operate to extend the trial court’s power to modify or change the judgment beyond the period of 30 days after the date of its rendition. It has accordingly been held repeatedly that a trial judge has no power to set aside a final judgment more than 30 days after the date of its rendition. Deen v. Kirk, Tex.Sup., 508 S.W.2d 70; Universal Underwriters Ins. Co. v. Ferguson, Tex.Sup., 471 S.W.2d 28; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706.

Our decision in Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, was on facts essentially similar to those of the present case. The trial court, which was governed by the Special Practice Act, entered a judgment purporting to be one by default against a defendant that had filed an answer but had no notice of the setting. A motion for new trial was filed by the defendant, and was granted by the district court, more than 30 days after rendition of the judgment. This Court held: (1) that it was beyond the power of the district court to set aside the judgment more than 30 days after its rendition; and (2) that the defendant’s only remedy was by bill of review. A writ of mandamus was accordingly issued directing the district judge to vacate the order granting a new trial.

Unless the judgment here is void, defendant can obtain no relief in this mandamus proceeding. If a writ of mandamus should now issue directing Judge Jordan to set aside a judgment that is merely erroneous but not void, we would be ordering him to do that which he has no power to do. Defendant’s right to relief in this proceeding thus turns on whether the judgment is void. We have never issued a writ of mandamus ordering a trial judge to set aside a final judgment that was voidable but not void at a time when the judge had *645no power to do so under the rules. The judgments under attack in Dikeman v. Snell, Tex.Sup., 490 S.W.2d 183; Universal Underwriters Ins. Co. v. Ferguson, Tex.Sup., 471 S.W.2d 28; McHone v. Gibbs, Tex.Sup., 469 S.W.2d 789; and Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, were each held to be void. Interlocutory orders and not final judgments were involved in State v. Sewell, Tex.Sup., 487 S.W.2d 716; Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565; Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677; and Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434.

Public policy requires that judicial transactions be invested with the utmost permanence consistent with justice. Considerations of justice must be weighed then against the importance of maintaining the integrity of judgments as solemn records upon which valuable rights rest. A litigant should be provided some remedy to gain relief from an unjust judgment, but the judicial system cannot afford the luxury of ordering new trials for purposes of delay.

If the judgment in the present case is void, it will still be void 20 or 50 years hence. This does not mean that the judgment would be subject to collateral attack, because the facts upon which relator relies can be shown only by evidence outside the record. It would mean that any judgment heretofore rendered in a court governed by Rule 330(b) or the Special Practice Act, even a judgment involving title to land or other valuable rights, would be subject to direct attack by motion in the trial court and mandamus proceeding in this Court and must be set aside if the movant can establish that he was not notified of the trial date. That result would be required even though the judgment were not unjust. In our opinion a holding that would impair the integrity of judgments to that extent cannot be justified where there is another remedy that will prevent injustice in particular cases without at the same time permitting formal judgments to be lightly overthrown.

The evidence concerning relator’s alleged defense and counterclaim was not fully developed at the hearing on the motion for new trial. When counsel for relator began going into the matter, an objection was made and sustained. The trial court stated that he was assuming counsel thought he had a good defense. Defendant’s vice-president did testify to a conversation he had with counsel for plaintiff in June before this suit was filed in September. The witness recalled having told the attorney that by July 15th he either would have the money to pay off the indebtedness involved in the present case or would be able to make a substantial payment and have a plan to pay the balance. This suggests that defendant’s amended answer and counterclaim may have been filed as a matter of settlement strategy or to gain more time. During oral argument of the case here, counsel for defendant was asked from the bench what defense defendant had to the suit. There was no reply. It cannot be said with any degree of certainty, therefore, that the judgment in the present case is unjust or that the effort to set it aside in this mandamus proceeding is for any purpose other than delay or to obtain an opportunity to make an advantageous settlement.

Be all that as it may, if defendant was not at fault and had a meritorious defense or a legitimate compulsory counterclaim, it may obtain relief by bill of review. See Petro-Chemical Transport Inc. v. Carroll, Tex.Sup., 514 S.W.2d 240. In the event defendant establishes its right to a bill of review and is denied that relief in the trial court, it will be entitled to appeal from the judgment in the bill of review proceeding. In our opinion due regard for the judicial system and the sound administration of justice requires that defendant be required to pursue that remedy rather than set the judgment aside in this mandamus proceeding without any inquiry as to whether it was at fault or had a meri*646torious defense. If any other remedy is required, it should be provided by amendment to the Rules of Civil Procedure, possibly along the lines of our Rule 165a or Federal Rule 60.

We are not to be understood as expressing an opinion on any question of fault or concerning the merits of the asserted defense or counterclaim. The motion for rehearing is overruled. No further motion for rehearing will be entertained.

McGEE, DENTON, DANIEL and SAM D. JOHNSON dissent for the reasons stated in the dissenting opinion filed by DANIEL, L, on October 30, 1974.