This is an appeal from a judgment rendered by default, and from the action of the trial court in refusing to set aside that judgment and award appellant a new trial. Appellant’s domicile-is in Dallas county, and the motion to set aside the default judgment, which was filed in time, states that appellant’s general attorneys in Dallas prepared an answer and forwarded it to Austin in time for it to have Been filed in the trial court; that the intention was to forward the answer to Ireland Graves, an attorney residing in Austin, who-, if he had received the answer, would have- filed it, and thereby prevented the rendition of the judgment by default. It is further stated in the motion that Attorney Ireland Graves has-been commonly known as Pat Graves, and that appellant’s counsel at Dallas- was not aware of the fact that such' was not Ms real-name, and that, while the- intention was- to address the envelope in which appellant’s answer was contained to Pat Graves, through inadvertence and mistake it was addressed! to-“Pat Greaves.” The motion set up other facts which- it is claimed show that appellant had a meritorious defense, which we- deem- it unnecessary to set out, as we- hold- that St is-not shown- that the court committed error, even though appellant had a- meritorious- defense-. The- motion is signed hy Seay & S'ea-y, of Dallas, Tex., and White;. Cartledfee- & Graves, of Austin, Tex., and: is verified! By Ireland Graves, who states that he is one of the- attorneys of record for the defendant, - and that the facts stated in paragraph 1 of the motion- are trae, and that each and! all of the facts stated in the motion are by Mm believed to- Be- true. The first paragraph- of the motion relates to the question of diligence, and does not set up or deal: with appellant’s defense to the appellee’s suit. At the same time that the motion referred' to-was filed' appellant filed an original answer, which alleges;, among other things, that the contract between appellant and appellee;, in effect, stipulated that appellant was: not to be liable on its obligation to pay aecidtent insurance when the injury resulted! while riding a motorcycle, and further alleges that appellee’s injuries were- sustained- while he was riding a motorcyele. The answer is sworn to- hy appellant’s secretary, who- merely states, as shown tey the officer’s jurat, “that he believes tbafc the facts set forth in. the above and foregoing answer are true.”’ There is no statement of facts or bills of exception showing what, if any, testimony was heard by the court in passing upon the motion to set aside the default judgment. On these facts we hold:
1. That the motion failed to show sufficient excuse for not filing an answer before the case was called on the appearance docket. It shows that, when the answer was returned to the Dallas attorneys by the postoffice authorities, those attorneys immediately communicated by telephone with Ireland Graves, thereby indicating that, if they had exercised as much diligence before the judgment referred to was rendered as they exercised when they ascertained that the answer had not been filed, that judgment would not have been rendered. The envelope which contained the answer is attached to appellant’s *1197motion, and it shows in plain, typewritten words that it was addressed to “Pat Greaves," and the motion merely states that the name “Greaves” was used through inadvertence and mistake, and we regard that statement as too general. By whose inadvertence or mistake was a different name written from that of the Austin attorney? Was it a mistake made by a stenographer in failing to correctly take or transcribe dictation, or was it a mistake made by the attorney who prepared and forwarded the answer? If by the former, there might be some excuse, but, if by the latter, we fail to see why it should be excused as he knew the Austin attorney’s name was “Graves,” and not “Greaves.” Furthermore, it is made to appear that Mr. Graves, to whom it is said the answer was intended to be sent, is a member of a law firm in the capital of the state, and it is not shown that the sender of the document did not know that fact, and, if he did, it would not have been the exercise of proper care, even if he had directed it to Pat Graves. But, as a matter of fact, and as stated before, it was directed to a different name, and the direction contained no street or number nor anything indicating that the addressee was an attorney; and, considering these facts, and keeping in mind the fact that the answer could have been sent to the clerk of the court, and thereby have prevented the judgment by default, we hold that the motion failed to show sufficient diligence.
2. We also hold that the motion was not properly verified as regards the defense to the plaintiff’s cause of action. As to that branch of the case the jurat of the officer merely shows that Mr. Graves stated on oath that he believed the facts set up in that regard in the defendant’s answer were true, without even stating the source of his information; and, if the answer referred to can be looked to in aid of the motion, its verification is equally defective, as the secretary who swore to the answer merely stated that he believed the facts therein set forth to be true. It is one thing to swear that a fact exists, and another to swear that the affiant believes that it exists ; and while, in some instances, it may be permissible for an affiant to make an affidavit upon information and belief, giving the source of information, even that was not done in this case. Some of the facts set up in appellant’s answer, if true, must have been known to its secretary, and therefore he could have sworn positively to such facts.
3. We are inclined to the view that appellant should have made it appear, by bill of exception or otherwise, that the court heard no other testimony in passing upon the motion, though it is not necessary to decide that question. It may have been shown by clear and undisputed proof that appellee was not riding a motorcycle at the time that he was injured, and therefore the trial court may have concluded that appellant was not entitled to have the case reopened, when it was certain that it did not have a meritorious defense.
Judgment affirmed.
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