*1 Louis Thompson St. 2d v. Tex.Civ.App., Ry. Co.,
Southwestern 1085. carefully
We have considered opposing
lees’ able the contentions brief The have sustained. which we fully appears
case was well tried.
developed. Appellees suggest additional controlling
evidence issues. these ren- is reversed and appellant.
dered for LYONS, Appellant, al., Appellees.
Kado PAUL et
No. 3595. Appeals of Texas. of Civil
Waco. 18, 1958.
Dec.
Rehearing March Denied *2 judgment
fault could have been entered her; against therein under the (2) because undisputed appellees’ facts the actions of trespass in connection to with the try thereby title suit fraud constituted vacated the judgment default as a matter law; of (3) because there are material is- sues of fact to be submitted to to appellant whether or not asserting her meritorious defense to Houston, appellant. Singleton, Bell & trespass try through the ex- title suit trinsic fraud of Tay- Cain, Liberty, Q. C. Cain, Taylor & through own; (4) no fault of -her because lor, Austin, appellees. summary judgment wrongfully denied appellant right her assert meritorious TIREY, Justice. trespass defense to the try title suit to set aside Judgment previously rendered in Cause that in said such motion judgment, Plaintiff Ezzie and that a retrial and it further seasonably 16,495, 16,495,and, appellant, follows: ‘For set fendant’s for Plaintiff This action judgment aside summary judgment the court proceeding is a Judgment it further open court on said a default filed their and hold for and decreed and Defendants Motion for is one for bill of appearing to the Court Lyons requesting find this completely motion was answered be had in said Cause purpose appearing to the Court alternative to Bill hearing judgment. Appellees motion for of Review filed Judgment, recital: naught Default accordingly. of this hearing null stipulated as review hold that summary “ hearing, granted counsel ** [*] motion void, De- No. No. In the Constitution of the United States of America; being tation served on written thereby deprived her non’s suit in of the trial court in the by due the Constitution of the United States of America. of Art. out due equal Constitution State notify appellant order give appellant’s rights was null protection of Texas and Ann.St. and taken process appellant proper answer with the process Sec. prevent (5) of the the State of of the Constitution of the void of law and denied her law the 14th Amendment to that she had to file her the 14th Amendment to her, because the under Art. laws, trespass Clerk of the court notice as reason in judgment property all in violation thereby Texas, provisions judgment required try Sec. the ci- failed failed with- Ver- title had a meritorious [*] it is to the cause Plaintiff [*] stipulated *; Beaumont Court transfer. seasonably action defense Defendant perfected original the Plaintiffs’ the cause appeal suit; The woman and acres geles, one A comprehensive California. trespass plaintiffs land is a here is an uneducated colored resident citizen of Los An- The in that action are try statement is title original County, Texas, involving action was necessary. also 97.2 Appellant, by is assailed what colored. trespass suit, points. try They original five are title lost an un- designates as lant interest in the land substantially effect that the one-third divided paid money. for with undisputed her own (1) because the erred judgment which seeks tres- answered in the show that deprived she was try title suit and therefore de- voided substan- pass says lands, being answer within a certain time but tial valuable oil interest clearly state totalling since the citation undisputed oil runs did since where to withheld written answer proximately $60,000 have been *3 appellees’ attorney signed out- had attached ultimate Company pending the Oil appellant, ability papers, with limited come of that suit. understand, proper to believed to send it family No- Appellant met the Paul first appellees’ attorney her written answer. Texas, and County, vember 1925 in Thereafter, 10, 1956, August on mailed she family. very became close friend to following com- appears Paul, after Kado sometime munication which she intended to be a appellant, he met went to California written answer with the accordance to money to come later sent to papers quote served her. We this there in California and that she went full: letter in June appears with it that she lived brother, Lyons and his “Ezzie Kado and cared for Kado Paul, Sidney Angeles Los “1727 West 35th. Place June Angeles when she married “Los 1927 to November California Lyons. married Kado was never to She Tayler “Mr. Kerns B. Sidney Paul Kado and Paul. About 1930 “Box 486 help purchase requested appellant them to “Liberty, Texas. question the tract land in use n their father, They Ed Paul. assured Tayler “Dear Mr. purchased pellant was that when land your is in greeting “this jointly all owned three in would be dayted august I I 6 1956 am was sure equal Later the three of them shares. rights my with in i gulf when wrote the $3,500 pur- Paul to Ed mailed a total oil may coast co. 1955 to have property over one-third chase payments stop on the oil deal untill $3,500 contributed was they inquiry made further savings which she had earned Sidney Lucy Paul and Mrs. McBride as housekeeper years through the as a Mrs. McBride Ed. was Mr. Pauls house waitress; appellant’s knowl- that without keeper keeper also book she new purchased land edge, Ed Paul and took place bought who also the date name, the land in and he died title to his paid place paid the amount was prior 1954,leaving the sometime intestate by only people three and heare are Appellees, through appellees his heirs. as they names attorney, trespass try present
their July 25, Sidney Sidney title suit Paul Paul t/ s/ 6, 1956, appellant was Kado Paul Paul served Kado On Lyons Lyons me Ezzie at her Ezzie citation by non-resident home Attached to citation was a California. place partner baught ship deal petition, plaintiffs’ copy of was parts to be devided in three so that is attorney. by appellees’ alleges She signed why i what i want a third dont no papers these with when she served paul the deeds maid out in his mr. care treatment of a money i him all name as mailed was confined be- bed doctor place any buy and i dont off one a nervous breakdown other cause permission giving boys him so the she so states troubles and in her physical surprise just I as was when we says that She further affidavit. Kado place had the made new he out him. Sidney knew of her illness time. Paul at the copys you “i inclosed some reading admits citation which Appellant proof you need further appear over look her to and file written commanded coperate i failed to glad have it will be inform me or hoped you this Court of any therefor; i can i way reason did not could off court however call be settle out to the attention of the trial me up fight Ezzie Lyons’ to kado if he wants letter to orme same in up thats to him. said cause as an answer for therein; that the Court entered de- you hope is what wants “do fault judgment defendant; against said no, November letter of very truly, “Yours date, said attached hereto and marked Lyons.” “s/ B’, ‘Exhibit again wrote *4 to me and which letter I received Nov. foregoing were letter Attached 7, 1956, and which letter confirmed copies appellant which of instruments me her understanding of the service in thought important to show her owner- were stating, ‘it appear by filing said to a ship in the land in suit. of interest one-third answer;’ written by for the first time copy (1) a These consist of instruments such letter was I that informed she was land, ex- gas of an lease on oil and ‘sick’and ‘suffers from nose bleeds’and 19SS; copy May (2) appellant ecuted in was ‘not get ; excited’ from air travel been mailed of an which had affidavit immediately, that day I re- .same appellees Sidney Paul for their Kado- letter, ceived the Lyons I wrote Ezzie would, executed, if signature 7, 1956, letter dated November appellant inter- show owned one-third that copy true of which is attached hereto not est in but which had land involved C,’ marked ‘Exhibit advising her been time wrote signed at the of all transpired, that had the default letter; copy letter foregoing (3) of judgment and what she would have to by Sidney 9, written dated December preserve do to rights; placed I that acknowledged Paul to which he in such in the U. S. Mails letter Paul, Kado the land was owned envelope my firm’s name and equal Sidney in shares. Paul and address, return it Ez- addressed to reply from Appellant no received Lyons zie same foregoing address she attorney letter. We lees’ to the Taylor’s quote given Mr. part previous letters; affidavit in her two summary judgment: motion for the letter me; was not returned “ * * * that did I know [*] [*] [*] » “That any other informa- she did soon thereafter or from receive
this letter Lyons during letter that sometime said Ezzie ill tion that folh'w- ing writing make defense week such letter I answer or re- unable to after telephone ceived a call time or on an at said the date in in said cause cause; in said was entered whom had retained I California 1956,appearance 10, him September advised Court term had that on appeared I cmd ended should move the day said defendant he toas put testimony to set aside the the end plaintiffs, behalf of before the term the deed land in intended to contest and introduced said if cause; Stang motion ever question Bernard et ux to filed 20, 1929, Lyons any attorney prior Paul, for dated Ed June 1929, 158, term, 6, close the Court Vol. record December ended County September (Since 1957.” the term Deed Rec- p. end- 30 of September 29, September ords; 1956 and father of Plaintiffs and ed Taylor’s they claimed whom since through said conversa- cause; Lyons the California the Defendant Ezzie tion with sub- suit, answered Court has November sequent his letter dated already judgment against you. rendered affidavit the contradiction obvious.) underscored information, your “For will now be necessary you bring suit quote We people Taylor: whom we these Nov. addressed Mr. represent prevail you order your you part contention that own “Dear Sir: property of this sued for. writting you “I to find out am very truly, “Yours pe- papers to you my rec. ancer and Taylor.” “Kerns B. day I rec. on the tition Petition dont understood know as Thereafter, conferred with filing correctly said Angeles who, turn, attorney, Los con- written Singleton, with the firm Bell & ferred Paul Kado attorneys Houston, Texas, and there- 16,495 being No. suit *5 appellant petition after original her filed Bill February for of Review in 1957 and papers I “I sick when rec. the was her Second Amended Bill of Review I suffers care are still unde-doctros 1958, January in which went trial to get am not from Nose Bleeds in this cause. The letter of November 7th my travel if nose bleeds excited so are only the first and communication for hours. appellant appellees received from or their you Rec. letter me let no “Please attorneys concerning the law suit. Since súpose have the Kado and when is the default had been entered on trial, September 10, 1956, ap- this letter truly, very “Yours pellees’ attorney at a came time after Lyons” “Ezzie final and become appellant after the which could time within Taylor's to-the above quote Mr. We perfected have filed motion new or for trial 7, November 1956: dated which is letter appeal, having an the term court ended 29, September 1956. See 199 also Art. Lyons: “Dear Miss 2, (75), Sec. V.A.C.S. receipt your letter dated “I am in record, only As we understand 1956, receipt 5, and also in November way appellant get for relief was to 1956, 10, ref- your letter petition her for Bill of Review. Much has 16,495, styled Kado No. Cause erence been written our to be courts on rule Lyons, in Dis- Paul, al vs. et followed in consideration of actions County, Texas. trict founded on bills of review default cases. copy Lines, from the you In Craddock v. Sunshine Bus can see “As upon was served Tex. S.W.2d our Su- petition plaintiff’s Court, preme speaking through represent the we you, Justice Paul, Paul, Hickman, Sterling ques- B. and after a review of suit, Otto- Kado Paul, relating matter, Sidney Paul Au- Paul, tions made this Ona you to defend “While trial courts In order statement: have some drey Paul. matter, employ as, an at- measure o-f discretion suit, you will have truth, they governed by an have all cases him file torney have suit, you principles, it equitable is not an this unless feel unbridled you in However, they might so-. to decide cases as to do discretion you are able proper, you without reference since deem to advise I wish litigation. Birge Our fail- also view is that his principle.” See guiding rule notify ure that he could Tex.Civ.App., 105 S.W.2d Conwell, v. represent ; Employ papers her her and return ref.) Texas (writ points 1 and her Tex.Civ.App., 130 to an fraud Cashion, tenders issue of extrinsic v. Ass’n ers ref.). 3-6, wrongful part 1112, points conduct on his (writ pass right had a in order determine or not whether Hagedorn, 148Tex. In Alexander negligent in behalf. We not mean Supreme our 226 S.W.2d hold infer that of the rule: statement Court made this n “Althoughthe bill of here owed advise equitable review is an counsel, that she must we seek other but litigant can success proceeding, before do think escape there no fact from the judg final fully it to set aside invoke that, as an and as an officer of prove: (1) allege he must ment court, it was his duty to advise cause of action meritorious defense lant that represent he could not (2) support judgment, alleged to return papers and the enclosures by the her. Assuming appellant had made op fraud, wrongful act of the accident or Texas, way Liberty, from California to any fault posite party, (3) unmixed with where appellees counsel his maintained think own.” We (cid:127)or his approached office counsel for by the governed here is factual situation pellees in his office tendered to him pronouncement. There is foregoing person, think enclosures in allege a meri did doubt appellees counsel for would have been du- judg final defense to set aside torious *6 ty-bound to back papers have her handed stip complained it was so of and ment her to not and told that receive her he could the So, question before ulated. the sole represented them because side. he the other appel is: court and this court Was trial Otherwise, counsel’s to so inform failure defense her lant appellant have caused would misled her and fraud, wrongful act of by the accident or complied to her believe that she had with any fault opposite party unmixed with the events, jury the citation. At all would own? We think negligence of her right pass ttpon question have a to this as which we shall “yes” reasons answer is whether negligent or not she was in so briefly state. hereinafter Appellant’s doing. August letter 10th attorney appellees’ Taylor apprised that view him of that our the fact appellant him sufficient information she was had before uneducated and that 10th, together appellant’s August letter under a mistaken that her belief enclosures, apprise place him of the was sufficient and with where should filed, appellant appellees’ that fide claim be think fact had a bona we that when attorney notify appel- her failed property, this and that inten- and refused to represent such claim in lant he could tion assert defend that her and appellees’ attorney her owe failed return papers suit. Did duty pursued August letter of lant her that he her course of conduct enclosures, 10th, jury together with with the have right which the would to in- n clerk designed if he the court? We doubt owed fer was to conceal appellant duty, we that but do think that under her court true state of affairs and appellant circumstances here in effect lulled the facts and de- into a feeling appellees’ security attorney tailed that owed the false as well as inaction her duty appellant immediately foregoing part. conditions, ap- Under 10th, pellees’ letter of moved her return her judg- him, possession letter and the enclosures she sent while of a and ment written in- n advise strument, attached, represent with her he could not enclosures that her that he 950 jury to negligence tion of one for the con- appellant should have known pass inter- upon. practice, as Under our defense sidered answer and as her preted jurors judicial system, the at our doing he In so the cause of action. proved, only are not judges of the impliedly represented to least but there- of the drawn the suit inferences to be to defend intend did not provided un- inferences are this such answered she had Supreme reaffirmed reasonable. Our At- extent court. misled the See C.J.S. Lochausen, 151 this doctrine in Burt v. torney p. 741. Client § page Tex. 194, point S.W.2d undisputed court, this Did the trial under undisputed Under situa- factual to assume situation, right factual have tion, .appellees knew hold conduct of that the desired contest the suit of law? a matter negligence constituted her and desired rights to assert Su- We “No.” Our think the answer is property question, think a Gulf
preme Court, case of would right under had a to infer Gascamp, Ry. 69 Tex. & S. v. C. F. Co. these appellees’ at- circumstances that 227, 228, speaking through 7 S.W. torney had advised that he could Gaines, statement: made this Justice represent her a and had written not, de- “Whether be the act letter and returned the that she enclosures it; pends attending upon the circumstances immediately would have sought legal coun- question and the is for the determination represent sel to appellees’ her. But attor- jury.” ney not to theory chose do so duty. owed Henderson, This court cannot Lang 147 Tex. agree Court, view in Supreme our this behalf. every This court Smedley, lawyer, thinks that speaking through made Justice our code many ethics and under general this statement after a review au- practice, who suit files a “According thorities : is contacted to the authorities manner parties many others, one of the above cited and ‘In order who sued, has been owes the per se, party an shall negligent act deemed *7 him immediately to advise contrary it must done the effect that been a stat- he is on the duty, other utory side of opposed litigation itor must so the that he cannot any render prudence the dictates of common that service whatsoever party say, doubt, we can without hesitation or the in- quiry him. of This that person no careful believes that the would have com- ” foregoing standard of mitted it.’ conduct has been
adhered to bar of Texas and appel no There is doubt throughout jurisdiction the American sub- writing in the of the letter stantially action exception lant’s without and that this negligence per of standard should be maintained. The Hon. contrary to a statu Rhyne, because Charles S. past president se of the duty. we think that her action Nor do tory American Bar Association, said: “Our sending system the an writing the letter government of is stronger no than Taylor opposed is so courts, our swer and our courts are stronger no prudence that common can of than strength dictates public’s of confidence doubt, hesitation say, without them.” Since anwas it, person would have committed court, officer of careful he owed the court the surrounding cir duty all of the not to under conceal material facts. prac detailed. Under our here cumstances summary Since this is a express judicial judg inter tice rule Supreme proceeding, the is: our ment “The given Court to
pretation hearing the parties, the court motion for ques- conduct of of sum- action
951 risprudence” are if there mary from the Latin judgment determine are derived is to tried, “jus”. word any issues of fact to credi- its weigh determine the evidence or in- blind, although in some Justice affi- bility, try the case on and thus stances appearing reported cases * * * purpose underlying davits. ‘The this appears State such For be true. patently 166-A Rule was elimination purpose as- appeal, we must this defenses; untenable unmeritorious claims or sume is the owner deprive litigants not being intended to land in controversy, com- and that she has right their the merits hearing full to a menced gain possession of her action to any real The burden issue of fact’ land years finding within two out after proving genuine issue there is no a claim to same ad- being asserted movant, material fact versely thereto. She has not been able genuine ‘All of a doubts as the existence develop her jury, evidence before a issue as to material must be resolved fact concur whereby judgment order summary against party moving judgment re- appealed from is ” judgment.’ Penn, 151 See Gulbenkian versed jury and the cause remanded for Tex. also 931. See S.W.2d trial. Tigner Angle v. First National Bank ton, 85. Our Su Tex. (dissent- McDONALD, Chief Justice preme change has not seen fit to ing). rule. by ap- brought This is a bill of review We think that trial court erred pellant judg- herein to set aside refusing to let go to trial before summary ment. The Trial Court entered bill issues tendered Ap- nothing. take of review, and that his failure to do so pellees, Paul, Sidney Paul and four Kado will cause this cause to be reversed trespass try title filed suit others Appellant’s remanded. points, far in so land, certain they harmony are in opin- with this July 1956, claiming such land as heirs of ion, are respects, sustained. other (deceased), they alleged Ed Paul who they are overruled. proved warranty procured deed the land 1929, and in Lib- dated 20 recorded Accordingly, June is reversed erty County 6 December Clerk’s office and the cause remanded. Appellant lives California and regular was served the nonresident notice *8 HALE, (concurring). Justice commanding “filing a by her to summary involves judg- this suit a plaintiffs’ petition While written answer ment, action, primarily it legal a is A.M. or before 10 o’clock of the Mon- at bill of to set expiration an action for review aside a day days after the of 20 next judgment. Being hereof, an action for bill default from the service before the Hon- review, primarily a proceeding Liberty it is in County, of Court of orable District equity, Texas, should be viewed as a Liberty, whole at in the Court House equitable proceeding rather signed by an than an notice as Such was Texas.” Therefore, at it action law. occurs to me of the District Court of Clerk case, that in consideration of the County copy the courts thereto a attached plaintiffs’ petition. consider fundamental regular should distinc- Such is in equity. respect (Rules between law every tion There is a 108 equity distinction between law and Procedure) vast Rules of Civil Texas and told exactly I shall not here discuss. what do. must Such citation was say for me to here that July 25 suffice and served on dated words “justice”, “jury”, “jurisdiction” “ju- Lyons by Deputy as 6 1956 a Sher-
952 August when filed Hagedorn he was to come in. 10 Thereafter
iff California. quoted judgment no answer and Alexander took wrote by attorney against Hagedorn. Hagedorn default majority opinion, in the filed bill of default review to set aside the him she owned appellees, told ½ judgment. Court, Supreme re- The land, having furnished she 1/3 versing judgments price. Court She the District money purchase for its attorney Appeals, of Civil 220 S.W.2d appellees’ alleged effect 196, which judgment set aside the and closed matter contentions against hoped Hagedorn, said: that a statement that she court, but out matter could be settled “Although the bill of review is an fight case appellees that wanted equitable proceeding, litigant before Appellees’ up was them. successfully can invoke it aside set receipt foregoing nothing upon did judgment final allege must Appellant file an letter. did prove: (1) a meritorious defense appellees’ attorney judgment took * * * the cause of action (2) appellees against- default for which he later September months Some fraud, wrongful accident or act bar, nature case at opposite party, (3) unmixed Sep- aside of a bill of to set review with any fault or negligence of his taken tember 1956 default own.” summary Appellees motion her. made granted such and the Trial Court (In Hagedorn case it was found that motion, summary judgment rendering Hagedorn had a meritorious defense to appellant take bill nothing on her review action, the cause of and in the case at bar Appellant ma- appealed, action. and the stipulated has been pro- for this jority reversed re- of this has court ceeding only appellant is deemed to have- cause, holding manded effect a meritorious defense to the of ac- cause appellant’s appellees’ the letter to writing tion). lawyer jury tenders as to whether issue The further Hagedorn said in the filing free in not case: timely answer; holding and further appellees’ attorney legal was under fundamentally “Because im- appellant’s letter and return her reply to portant justice in the administration of her, that his failure enclosures finality judg- some be accorded to tendered issue to whether so ments, these essentials have been uni- guilty extrinsic formly courts; recognized our fraud. review, therefore, seeking re- bills of judgments always ‘are lief watch- Supreme opinion Alexan Court’s equity ed courts with extreme Hagedorn, 148 Tex. der jealousy, grounds on which in- is determinative of case. *9 narrow Hagedorn terference will be allowed are was sued Alexan case restricted’; and not damages the rules are car, der for to Alexander’s occa merely may to be relaxed because car when Alexander’s ran sioned into particular that an case alleged Hagedorn’s, some mule be which was * * * injustice been ‘End- highway has done. in violation of on the the stock nothing litigation less was ev- Hagedorn was served with citation laws. determined, finally er would worse be courthouse talked with to the went jus- miscarriages than occasional The Clerk Hage- Clerk. told District ” * * * at (226 page tice.’ S.W.2d session that court as dorn 998). notify him him he would further sured or enter a judgment against valid the statements a non- “Reliance defendant, though persons answering promises third even he have to would check position plaintiff’s with they may occupy official if some see any bet- defendant position in a to have had in seem be manner communi- himself, him; party cated with ter information than the the nature of the commu- nication, if ordinarily any; plaintiff’s does not to relief entitle and whether at- * * * torney replied defendant, make a defense” had failing to if so reply (226 page 998). nature of S.W.2d at communication. any “Under it would other rule be stronger actually The case at bar is very impossible difficult for a than case the bill of review denying trial court to function in field of Hagedorn Hagedorn was the In the case. judgments. default For it would he Hagedorn case filed no answer because mean that the court before could enter District that he assured Clerk judgment against valid a non-answer- would be at notified further. the case defendant, ing he would call any- have to bar Lyons Ezzie had not been assured clerk, perhaps the sheriff and all anyone. thing by The most that can said be dep- other courthouse and their position officials perhaps thought, any uties to ascertain whether of them erroneously so, but an an- that she had filed any had agreement made extra-official compliance swer in citation. notify the defendant when his case ap- contends * * brief Appellant’s would be on Obviously, call *. Trial Court informed pellees’ counsel such a situation would be intolerable” * * * had received letter he (226 page 998). at S.W.2d probably would Trial Court Lyons, that the prevail “Again, Hagedorn cannot default judgment. have entered the that he was because has not shown he states, opinion majority ap- that when prevented defense his pellees’ counsel the default moved their fraud Alexanders’ suit represented impliedly he judgment wrongful (226 page at act.” S.W.2d appellant did intend Trial 1001). suit had not defend the answered extent misled the court. and to this Had request appel- While Ezzie did not the Trial appellees’ counsel told Court of lawyer anything, lees’ to do or to letter, Lyons’ the Trial Court would Hage- her letter —but had she done so the had to enter same n dorncase is a complete answer: no answer was it did because respondent requested the dis- “When But, event, case. Trial Cotirt notify him when he should trict clerk to voith the matter disclosure full to defend the suit return to court him on the bill facts, review to before clerk requesting to undertake judgment, set aside with all default latter something that was in no him, set aside the before refused required ca- sense his official judgment. So, that, pacity. the clerk became 2, supra, now revert to Item We of what respondent’s agent, allege prove litigant must to set aside respond- charged the clerk must bill of review. ap- Was ent, negligence.” it became his own pellant filing her answer by page at accident, fraud, wrongful or the act Hagedorn that the seems case is attorney? Appellees’ pellees’ attorney did *10 applicable. very indeed would be difficult nothing. legal heWas under a duty to re- a Trial Court to function for in the field ply Lyons’ to Ezzie letter and return her if, judgments default before a court could to her? The enclosures majority opinion holding pellant filing in the says basis for from not her answer yes. know of no case, citation, by duty. In the absence for than did legal be his as called promise fail- duty, then District further no- his Clerk’s being legal of such his tice, a Hagedorn Hagedorn make cannot excuse in the ure letter case. pre- as to whether was issue, by the fraud her answer filing vented It appears 1) Appellees’ attorney that: attorney. The appellees’ wrongful or act was legal appel- under no to answer holding herein would impact majority lant’s letter, event could not Un- litigation. future tremendous have prevented her from answering taking be safe in such, no will der through act; wrongful extrinsic fraud or con- he has been if default 2) Appellant guilty negligence letter, or person, phone, tacted facts, filing timely riot answer as served, party has been by who sued and called citation; majority 3) the (but answer). files Indeed almost who no opinion is in conflict with Alexander v. been need a defendant served who has Hagedorn, 996; 148 Tex. 226 S.W.2d plaintiff’s is write and with Garcia v. Ramos, Tex.Civ.App., allege which, him consti- true, Refused. W/E way, go tute a defense his to the action— taken can be any The judgment of the Trial Court should later set aside. be affirmed. proving alleging and In addition filing an- timely prevented from was she wrongful act of fraud
swer allege must party, opposite “unmixed with such was prove (Item her own.” negligence of fault supra). CARRINGTON, Joe Sr., C. Appellant, (on page opinion majority The S.W.2d) states Texas, Appellee. STATE of appel- writing se, etc., in per negligent No. 10633. but, the Perhaps this lawyer. lees’ true— Hagedorn case in the referred negligence Appeals Civil of Texas. negatived, is must be Austin. filing Lyons in part Ezzie March 1959. case, the cita- called answer Lyons wrote the fact that Can tion. Rehearing Denied March lawyer and then waiting a re- answer, (presumably filing him), excuse ply from the fact that Ezzie answer? Can timely mistakenly thought filing she Lyons (which does letter) writing
reading of counsel, her from not filing excuse
lees’ citation with which
timely answer? plain language served told her when, understanding where, easy required to she was whom her an- can read and write. swer. can circumstances no more excuse
Such