86 S.W.2d 811 | Tex. App. | 1935
Appellant filed suit against appellee in the county court of Rockwall county on a promissory note. Citation issued requiring the appearance of appellee at the next regular term of said court, which term began on the 2d day of July, 1934, and which citation, according to the officer's return thereon, was served on the appellee on June 20, 1934. Thereafter, on the 21st day of July, judgment by default was entered against appellee herein.
At a subsequent term of said court a hearing was had on what is denominated by appellee as its "motion to set aside judgment and to quash execution." There is no allegation in the motion, or bill of review, as to when the appellee discovered that a default judgment had been taken against him. No reason is alleged why he did not appear at the same term of court at which the judgment was entered and file a motion for a new trial setting up the grounds alleged in the bill of review, or appeal; nor is there any allegation of an excuse for failure to pursue his legal remedies, nor that such remedies were inadequate. The Supreme Court of Texas, in the case of Caperton v. Wanslow,
The rule is laid down by the Commission of Appeals of Texas in the case of Gehret et ux. v. Hetkes, 36 S.W.2d 700, 702, in the following language: "A positive averment of a valid excuse for not obtaining relief by a motion for new trial is essential in a bill of review to set aside a judgment after the expiration of the term at which it was rendered" — citing Ragsdale v. Green,
Treating the so-called motion as a bill of review, and conceding for the purpose of this appeal that it is otherwise sufficient as such, still the cause must be reversed because of the failure of the appellee to make the allegations excusing himself from filing a motion for a new trial during the term at which the default judgment was entered and pursuing his legal remedies with diligence. 25 Tex.Jur. § 239; 17 Tex.Jur. § 28.
Reversed and remanded.