Appellant seeks to overturn a default judgment of disbarment against him. The court overruled appellant’s motion for new trial.
We will affirm the action of the trial court.
This case originated from complaints filed with the Grievance Committee for the Stаte Bar of Texas District 9. After several hearings conducted by the Grievance Committee, it was of the оpinion that the appellant herein should be disciplined for certain acts of professional misconduct. The Committee then offered Munson a term of suspension which he, as was his right, refused to accept.
Suspension may not be imposed by a Grievance Committee without the specific written consent of the accused; therefore, the Committee’s only alternative was to seek discipline thrоugh the filing of a formal complaint in district court. Such a suit was filed in the district court against appel *441 lant alleging the acts of misconduct. He was served with citation on December 27, 1977. Appellant failed to file an answer by the appearance date, January 23, 1978, and a default judgment was entered against him on January 26, 1978.
Appellant is before us on three points of error; however, since we overrule his first point concerning his excuse for failure to answer, we do not reach the other points which are dirеcted towards establishing a meritorious defense.
The first point assigns error of the trial court in overruling aрpellant’s motion for new trial because the court did not follow the test set out in
Craddock v. Sunshine Bus Lines, Inc.,
The test set out in Craddock and again in Ivy is as follows:
“A default judgment should be sеt aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake оr an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”
After a rеview of the testimony in this case, which lasted for the better part of two days, we conclude that appellant did not sustain his burden of showing that his failure to answer before judgment was not intentional, or the result of сonscious indifference on his part. Consequently, we do not reach appellant’s points assеrting a meritorious defense.
The testimony in the record before us was offered, principally, by appellant and Terry L. Belt, an attorney in Austin. Belt, who had represented appellant before the Grievance Committee, gave testimony that was fully developed, clear and unequivocal. He testified thаt he told appellant, well before the deadline for filing an answer, that Belt would not represent him any further unless a fee of $5,000 was paid. Appellant then proposed he assign to Belt an oil royalty bеlonging to some woman in Houston. Belt agreed to this transfer believing that the royalty was for $870 a month, but also insisted upon receiving the royalty prior to filing an answer. As time passed and no royalty was forthcoming, Belt learned from appellant that the royalty was an annual payment and not monthly, so Belt declined to accept this arrangement. Belt then informed appellant that for a payment of $2,000, he would filе an answer in the case. According to Belt, appellant stated next that he definitely could not come up with the necessary $2,000. At that point Belt informed appellant he was no longer representing appellant and that appellant should pick up his files from Belt. Appellant denies hearing Bеlt make this statement. Appellant, an attorney and a certified public accountant, testified that he had never paid Belt anything. However, he was under the impression that Belt would file an answer for him anyway.
The Court in Craddock stated that although trial courts have some measure of discretion in a matter such as we have bеfore us, as courts have in all cases governed by equitable principles, it is not an unbridled discretion to decide the cases as they might deem proper, without reference to any guiding rule or princiрle. The Court then set out the guidelines quoted earlier.
Nonetheless, in our judgment, and we so hold, under the facts summarized above, the court did not abuse its discretion in overruling the motion for new trial. Appellant’s defense of excuse rests upon disputed facts. The credibility of the witnesses and the weight to be accorded their testimony was to be determined, of course, by the district court. See
Harrell v. Sunylan Co.,
The judgment of the trial court is affirmed.
Notes
. The defendant in that case denied any knowledge of the pending lawsuit or of receipt of the petition. There was no controverting testimony.
Ward v. Nava,