221 S.W.2d 1003 | Tex. App. | 1949
Lead Opinion
This appeal is from an order made on a petition for a bill of review. The. original suit was filed by Mrs. Alice Glover Hughes, appellee, against her then husband James T. Hughes, appellant, for divorce, custody of their minor child, child support, and for
No further answer was filed by Mr. Hughes. The court then proceeded to hear both the motion to increase the child support, defended by Mrs. Douthit, and the application to set aside the property, settlement, defended without pleading to the merits by Mr. Cusack.
At the conclusion of the testimony the court entered judgment covering all matters before him, and this appeal by Mr. Hughes is only from that .part of the judgment setting aside the property settlement and rendering judgment against him for $2,723.80 plus court costs.
Appellant James T. Hughes’s first three points raised the issue as to. the jurisdiction of the court to render that part of the judgment' appealed from. These points must be overruled. Appellant, by filing the pleas in abatement and the plea to the jurisdiction, submitted himself to the jurisdiction of the court for all purposes. The Supreme Court of the United States in York v. State of Texas, 137 U.S. 15, 11 S.Ct. 9, 10, 34 L.Ed. 604, in denying a .constitutional attack (under the Fourteenth Amendment) on our statute, stated our rule as follows:
“It was conceded by the district and the supreme courts that the service upon the defendant in St..Louis was a nullity, and gave the district court no.jurisdiction; but it was held that, under the peculiar statutes
The filing of the bill in the old case and under the old number' is not objectionable. Galbraith v. Bishop, Tex.Com. App., 287 S.W. 1087. The hearing of all matters, both under the bill of review and the motion to increase child support, etc., together, was within the trial court’s discretion. Rules 41, 51(a), and 174, Texas Rules of Civil Procedure.
Appellant’s fourth and last assignment asserts that: .“Where under a Bill of Review the allegations were that the former judgment had been obtained through fraud and duress, and where the appellee testified that previous to and at the time of the entry of the former judgment she had-full knowledge of" the facts- and she testified to no duress other than her desire to obtain the divorce,’ the Trial Court erred in rendering a judgment setting aside ' the former judgment and rendering a personal judgment against, Appellant.” Appellee counters that “The trial court did not err in rendering judgment against the appellant because appellee alleged and proved fraud and duress in her motion in the nature of a bill of review and the facts have not been denied by appellant.”
The record in this case, as heretofore stated,, shows no answer to the merits. The court, however, did hear evidence and permitted cross-examination by appellant’s attorneys, even though ap-pellee’s attorney on three occasions during the hearing of the evidence, called the trial court’s and appellee’s, attention to the absence of a general denial or other defensive pleading to the merits. The proceeding being for equitable relief, the applicable rule is set out in 30 C.J.SV Equity, § 673b, page 1114, as follows:
“Notwithstanding the default, the plaintiff may, in the discretion of the couirt, be required to sustain the allegations of the bill' by proof,-the usual practice being to- render a decree without proof where the confessed allegations are sufficiently. distinct and positive a.nd.to require supplementary proof in other cases.” .
We have reviewed the evidence to ascertain whether or not the pleadings and testimony were sufficient to sustain the court’s judgment. The complaint is to the effect that there is no evidence to sustain the judgment and the only relief prayed for on this appeal is, after reversal, a rendition of judgment for appellant by this Court. Therefore, ■ casting aside . all evidence except that which sustains thé judgment; as we -are required to do under such an attack, can we say that there is no., eyi-. dence to sustain the judgment? We have concluded that the appellee’s pleadings and evidence raised -the questions of fact .decided by ■ the trial judge 'under that test, and that we cannot-so hold, and therefore affirm the judgment below. • . .
Affirmed.
Dissenting Opinion
(dissenting).'
On original submission I voiced doubt as to affirmance of the judgment of the court below.; since, have reached the.conclusion that appellant’s motion for rehearing should be sustained 'and the judgment of the court below reversed and the cause remanded for a' new trial.' I record the grounds 'of my dissent as follows •
A bill of review, even if filed as a motipn, as here, is a new and independent cause
The only attempted service upon the appellant, a nonresident of Texás, was by service of a copy of the motion (bill of review) upon Melody Tune Douthit who was only the attorney for appellant upon other motions for increase of child support and for change of child custody. Appellant’s' only answer consisted of a plea to the jurisdiction and pleas in abatement based upon' the ground that there had been no service upon the appellant, and attacked the attempted service upon Melody Tune Douthit. The trial court overruled such pleas and proceeded immediately into the trial of the cause on its merits — over the objection of defendant.
These pleas but constituted an appearance of appellant at that time to have an adjudication of the sufficiency of the process and service. York v. State, 73 Tex. 651, 11 S.W. 869. There having been no service upon the appellant, the trial court errect in overruling such pleas.
I agree with the majority in its holding that by the filing of such pleas the appellant, submitted himself to the jurisdiction of the court for all purposes, but I am in serious disagreement as to when such filing constituted an appearance on the merits. The appellant had the right to file such pleas and to have an adjudication upon the lack or insufficiency of service; and under the. authorities the appellant then entered. his appearance for such adjudication. This, under all the authorities which I have been able to find,- was not .an 'appearance at that time in the case on its merits. Under Rule 122, Texas Rules of Civil Procedure, in the event the trial court sustains such pleas as it should do, the appellant would be deemed to have entered his appearance on the merits at the Monday next after the expiration of 20 days after the date upon' which said pleas were sustained.
Under the provisions of Rule 123, which is .a re-enactment of Article 2049, R.S., where a judgment is reversed on appeal for want of service or because of defective service of process, the appellant would be presumed to have entered his appearance at the term of the court at which the mandate should be filed.
Therefore, I am of the opinion that the judgment of the court below should be reversed and this cause remanded for new trial. The trial was not fully developed, appellant should have his day in court. I refrain from discussing the evidence; suffice to say, appellant has a meritorious defense.