LeBlanc v. LeBlanc

Jul 12, 1989
C-8390
Reporters:
, , ,
Before:
Per Curiam
PER CURIAM.

This is an appeal from a judgment of divorce. The court of appeals has reversed the property division and remanded the cause ‍‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​‌‌​​‌​‌‌‌​​​‌​​‌‌​​​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​‌​​​‌​‌​​‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‍for a new division. 761 S.W.2d 450. Among other things, husband has argued the application of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), to the judgment of the trial court. Craddock sets forth the traditional elements of proof required to obtain a new trial following a ‍‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​‌‌​​‌​‌‌‌​​​‌​​‌‌​​​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​‌​​​‌​‌​​‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‍default judgment. Id. 133 S.W.2d at 126.

The court of appeals concluded that Craddock had no application to the present case because it was tried on the merits, rather than decided by default. 761 S.W.2d at 454. Citing Tex.R.Civ.P. 239, the court of appeals further explained that this was not a case ‍‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​‌‌​​‌​‌‌‌​​​‌​​‌‌​​​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​‌​​​‌​‌​​‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‍of default because husband had filed an answer. Id. Although we agree that Craddock has no application here because the case was tried on the merits, we do not agree with the court of appeals’ explanation. Craddock has general application to all judgments of default, both those “entered on failure of ‍‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​‌‌​​‌​‌‌‌​​​‌​​‌‌​​​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​‌​​​‌​‌​​‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‍a defendant to file an answer and those entered on failure to appear for trial.” Ivey v. Carrell, 407 S.W.2d 212, 213 (Tex.1966). The present cause was decided on the merits not because husband had an answer on file, but because he was represented at trial ‍‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​‌‌​​‌​‌‌‌​​​‌​​‌‌​​​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​‌​​​‌​‌​​‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‍by counsel. There was no default even though husband failed to appear personally for the trial.

The application for writ of error is denied.