PLAINS GROWERS, INC., Relator, v. E. E. JORDAN, Judge et al., Respondents.
No. B-4449.
Supreme Court of Texas.
Oct. 30, 1974.
Rehearing Denied Dec. 18, 1974.
517 S.W.2d 245
Robinson, Fotheringham & Simpson, Tom J. Fotheringham and A. J. Robinson, Amarillo, for respondents.
WALKER, Justice.
This is an original proceeding in which Plains Growers, Inc., relator, seeks a writ of mandamus to require the Honorable E. E. Jordan, Judge of the 47th Judicial Dis-
The parties other than Judge Jordan will be referred to as they were designated in the trial court. On August 3, 1973, plaintiff Ickes-Braun instituted suit against defendant Plains Growers in Cause No. 12,902-A in the 47th Judicial District Court of Randall County to recover the principal, interest and attorney‘s fees alleged to be owing on a promissory note for $16,342.00 executed to plaintiff by defendant on December 21, 1971. Defendant was served with citation on August 23, 1973, and timely filed its original answer on September 14, 1973. The answer consisted of: (1) a special exception directed at the absence of any allegation in the petition that plaintiff was the owner and holder of the note, and (2) a general denial.
The docket of the 47th Judicial District Court was duly called by Judge Jordan in Randall County beginning at 9:00 o‘clock a. m. on Monday, January 7, 1974. Counsel for defendant resides in another county. Neither defendant nor anyone representing it was present at the call of the docket. Counsel for plaintiff was present and requested that Cause No. 12,902-A be set for trial at 10:00 o‘clock the same morning, and the setting was ordered by Judge Jordan. The case was called for trial at the time set. The note was introduced into evidence, and judgment was then rendered in plaintiff‘s favor for the principal, accrued interest and attorney‘s fees.
Neither defendant nor its counsel was notified of the setting or the trial. The postcard notice of the judgment required by Rule 306d1 was mailed by the clerk to defendant‘s counsel on January 17, 1974, and was received by the addressee on the following day. This was after expiration of the 10-day period prescribed in Subdivision 1 of Rule 329b for filing a motion for a new trial. Under the provisions of Subdivision 5 of the same rule, however, the trial court had jurisdiction to set aside the judgment for 30 days after the date of its rendition. Defendant accordingly filed a motion for a new trial on January 23. Attached to the motion is a copy of an amended answer verified by defendant‘s president on January 17, which sets up, among other things, a defense of failure of consideration. After a hearing on February 1 at which evidence was introduced, the motion for new trial was overruled. Motion for leave to file a petition for writ of mandamus was then filed in this Court and the motion was granted.
Defendant insists that the judgment, entered as it was without notice to defendant or its counsel of the trial setting and without allowing an adequate opportunity to prepare for trial, was void. We do not agree. The setting of cases in the district courts of Texas is governed by
On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by аgreement of the parties, or on motion of either party, or on the court‘s own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.
The rule specifically requires notice only when a case is set by the court on its own motion. In this respect it is somewhat at variance with
Be all that as it may, the provision in
On August 1, 1970, the 47th Judicial District Court promulgated local rules as authorized by
There is no local or general rule requiring notice to the parties of a setting made at the regular call of the docket, and the case was tried on its merits at the time it was set for trial. The early setting and trial without further notice to defendant or its counsel does not violate any statute or rule, and our decision in Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, has no application. Although the setting and trial without notice may have constituted an abuse of discretion under the circumstances, a question we do not attempt to decide here, this does not render the judgment void. Thе trial court had jurisdiction of the subject matter, and the judgment is not void even though it may have been erroneous.
If defendant has or had any remedy other than the late motion for new trial, it was by writ of error to the Court of Civil Appeals or by petition for bill of review in the trial court. A petition for a
The petition for writ of mandamus is denied.
Dissenting opinion by DANIEL, J., in which McGEE, DENTON and SAM D. JOHNSON, JJ., join.
DANIEL, Justice (dissenting).
I respectfully but vigorously dissent.
It causes me great concern to see this Court condone and approve the validity and finality of a judgment rendered by a trial court in a contested case which was set for trial within less than an hour after the attorney for plaintiff requested the court to do so and without any notice whatever to the defendant or its counsel.
I consider the trial court‘s hurried “setting” without notice and the ex parte trial to be contrary to the fundamental principles of fairness and justice embodied in our system of judicial administration and clearly in violation of
Rendering a judgment against a party without an opportunity to be heard has been condemned. Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914 (1876). In that case Mr. Justice Field said that a judicial determination under such circumstances “is not entitled to respect . . . .” He quoted with approval from another case which said that a hearing,
“where no notice, written or constructive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding.”
My concern is not with this case alone. The granting of a writ of mandamus requiring the trial court to set aside its judgment and restore this case to the docket would not only sеrve to remedy the injustice in this case, but it would serve to deter rather than condone similar violations of
It has been suggested that our mandamus jurisdiction should be exercised only
I interpret
“On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of either party, or on the court‘s own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation.” (Emphasis supplied.)
It is apparent from this Rule that its primary purpose is to provide for setting contested cases for trial in a manner which will give the opposing parties a reasonable time to prepare for trial. The first five phrases, which are directory, provide that on the first Monday of each calendar month the trial court may, “and as far as practicable shall,” set for the next calendar month all contested cases which are requested to be set. Clearly, that portion of the Rule is to give the contesting parties a month within which to prepare for trial. If plaintiff‘s request for a setting had been made under that portion of the Rule, the defendant would have had an opportunity to prepare and to be heard, assuming that the trial court follows
However, plaintiff‘s motion for the setting of this case, made after 9:00 a. m. on
Respondent contends, and evidently the majority agrees, that because of a comma at the end of the phrase “or on the motion of either party” or the absence of a comma at the end of the phrase “or on the court‘s own motion,” the requirement of notice to the parties applies only when the court makes an earlier setting on its own motion, and not when (as in this case) the court grants an earlier setting on the motion of an adverse party. That interpretation, based upon the placement of punctuation marks, leads to an incongruous and unjust result directly contrary to the underlying purрose and intent of that portion of the Rule—settings at any time (even less than a calendar month ahead) with notice to the parties so as to allow them reasonable time for preparation.
Is it reasonable to believe that the enactment of this Rule, first by the Legislature as a statute3 and then almost verbatim by this Court, was intended to provide for notice to the parties only when the court sets a case on its own motion and not when he sets it on the motion of an adversary party?4 Obviously, it is just as important, if not more so, for the non-requesting party to have notice of an earlier setting when moved for by his adversary. Otherwise, with no notice, how could the non-requesting party be allowed “reasonable time for preparation,” as the Rule requires? Surely the last phrase “so as tо allow the parties reasonable time for preparation” modifies at least the preceding phrases relating to earlier settings. If that be true, then the only reasonable interpretation within the spirit and purpose of the latter portion of the Rule is that “with notice to the parties” requires notice whether or not the early setting was on motion of one party or on the court‘s own motion.5
Since at least 1967, the text writer or compiler of Time Table for Lawyers Under the Rules, which is published in the front of Vol. 1 of Vernon‘s Texas Rules of Civil Procedure, has given that interpretation to
“On the first Monday of each month, as far as practicable, judge is required to set contested cases for trial during next calendar month, when request has been made for setting; but by agreement of pаrties, on motion, or on court‘s own motion, cases may be set at any time on notice to the parties, allowing reasonable time for preparation.”
Our Rules, whether or not derived from statutes, have the same effect as statutes, and are subject to the rules of statutory construction. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); Sutherland, Statutory Construction, Vol. 2 § 31.06 (4th ed. 1973). One of the cardinal rules of statutory construction is that “statutes
“The better rule is that punctuation is a part of the act and that it may be considered in the interpretation of the act but may not be used to create doubt or to distort or defeat the intention of the legislature. When the intent is uncertain, punctuation, if it affords some indication of the true intention, may be looked to as an aid.
“On the other hand, if the act as originally punctuated does not reflect what is otherwise indicated to be the true legislative purpose, in order to effectuate such purpose the punctuation may be disregarded, transposed, or the act may be repunctuated.”
The same text, Vol. 3 § 67.02, states:
“There is widespread preference for the method of interpreting procedural statutes which insures that a case will not be disposed of on the basis of procedural technicalities but will be considered on its merits and decided on the basis of the substantive rights of the parties. Mere technicalities should not be permitted to impede the trial of a case, and so an interpretation which is highly technical, or results in absurdity or injustice is to be avoided . . . an interpretation allowing one litigant to take advantage of or cast harsh burdens upon the other is avoided where possible, and a construction which will avert bias and secure a fair trial is highly favored.”
We may look further to our own Rules 1 and 245 as to the purpose and manner in which
“The proper objective of rules of civil procedurе is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.”
“The court shall provide by rule for the placing of actions upon the trial calendar.
“(a) without request of the parties or
“(b) upon request of a party and notice to the other parties or
“(c) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by any statute or rule.” (Emphasis supplied.)
Rules 245, 246 and 247 are said by the majority to govern the setting and trial of cases in district courts with noncontinuous terms and in county courts, but there is no such limiting language in those rules. All district courts in Texas have had continuous terms since Section 1 of Article 1919 became effective January 1, 1955, but Rules 245, 246 and 247 have not been changed as to district courts, and the applicable portions thereof which do not conflict with Rule 330 should continue to apply. See Rule 331. The holding to the contrary will no doubt come as a surprise to a great majority of the district courts which have adopted and filed local rules. See Local Rules of the District Courts of Texas, compiled by the Texas Civil Judicial Council, April 15, 1974. A careful examination reveals that with but few excep-
“. . . Before the request for setting is filed, a copy thereof shall be served upon all counsel of record in the case and all parties not represented by counsel . . . The party requesting the setting of a case for trial on the merits shall certify on his request . . . [among other things] that all parties and counsel of record have been supplied with copies of the request for settings.” Local Rules Compilation, supra, 151-152.
In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959), the Court made passing references to Rules 245, 246 and 247 as being applicable in district courts of noncontinuous terms and to
“It is the purpose of the Rule to provide a party to a contested case with his day in court.”
Unless we are to allow a comma, or the absence of a comma, to control the purpose and object of the latter portion of
Since the present punctuation dоes not hinder my interpretation of the Rule as presently requiring notice to the defendant of the advanced setting, I would hold the trial court‘s setting and judgment in this case to be in violation of
In any event, there can be no doubt that the trial court violated that portion of
Actually, there was no way for notice to get to defendant‘s counsel, except from the trial judge or plaintiff‘s counsel, because they were the only ones who knew about the hurried-up setting. The record before us shows without dispute that the district clerk did not know about it; no setting was ever noted on the court‘s docket sheet; and it was not on the court reporter‘s typed list of cases which were actually set by the court on January 7. The trial court‘s explanation for that (on the relator‘s motion for new trial) was “the case doesn‘t appear on the list here, because anybody knows it takes a little while to get things out, and this matter was already dis-
In this respect, there is not much difference between no setting at all in Freeman v. Freeman, supra, and the setting without nоtice and without allowing a reasonable time for preparation in the present case. Both were in violation of mandatory provisions of
“. . . Judgments are void for lack of power in courts to render them when they are rendered contrary to constitutional or valid statutory prohibition or outside limiting constitutional or statutory authority. . . . Our Rules of Procedure have the same force and effect as statutes. If a statute had provided that all contested cases should, on appearance day, be set for trial and that no default judgment could be rendered in such a case until the day of its setting, we would not hesitate to declare void a judgment rendered in violation of the statute. That, in effect, is what Rule 330(b) provides. It is the purpose of the Rule to provide a party to a contested case with his day in court. By way of precedent, we have declared void a judgment of injunction rendered without the filing of a bond as required by Rule 684, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303.”
It has been the policy of this Court to accept and exercise our mandamus jurisdiction in cases involving direct attacks on void or invalid judgments of district courts and to grant conditional writs requiring that they be expunged or set aside. See Dikeman v. Snell, 490 S.W.2d 183 (Tex. 1973); Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28 (Tex. 1971); McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971); and cases cited in those opinions. The remedy is especially appropriate where there is no other remedy “equally convenient, beneficial, and effective as mandamus.” Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); G. C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897 (1919).
Obviously, the defendant in this case is left without any equally effective remedy. I would conditionally grant the writ of mandamus, ordering the judgment of January 7, 1974, to be set aside.
In view of the broad holding of the majority that the Texas Rules of Civil Procedure as promulgated by this Court do not now require notice to all parties of trial settings made by district courts upon the request or motion of an adverse party, I recommend that this Court initiate a study of rule changes which will provide for (1) a uniform system of reasonable notice of all trial settings, and (2) a more adequate remedy than bill of review to set aside a judgment and restore the case to the docket when it has been set and tried without notice to an adverse party. See analogous amendment to Rule 165a, effective February 1, 1973, with respect to reinstatement of cases dismissed without notice, and Rule 60, Federal Rulеs of Civil Procedure.
McGEE, DENTON and SAM D. JOHNSON, JJ., join in this dissent.
ON MOTION FOR REHEARING
WALKER, Justice.
The opinion on motion for rehearing delivered on November 27, 1974, is withdrawn, and the following is substituted therefor:
In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, we said that Rules 245, 246 and 247 govern the setting and trial of cases in district courts with non-
Defendant‘s motion for rehearing convinces us that our original opinion should have dealt in more detail with the facts disclosed by the record and with the considerations that led to a denial of relief in this proceeding. It is contended that due process required that defendant be given formal notice of the trial setting and an opportunity thereafter to prepare for trial. Where, as here, there is no statute or rule to the contrary, parties оver whom the court has properly obtained jurisdiction are expected to keep themselves informed of the time a case is set for trial and are not entitled to notice of the trial other than the setting of the case on the docket. See Mackay v. Charles W. Sexton Co., Tex.Civ.App., 469 S.W.2d 441 (no writ); Cage v. Cage, 5th Cir., 74 F.2d 377; Wetzel v. Birmingham Electric Co., 250 Ala. 267, 33 So.2d 882; Savage v. Stokes, 54 Idaho 109, 28 P.2d 900; Rubbelke v. Aebli, Mo., 340 S.W.2d 747; Johnson v. Bearden Plumbing & Heating Co., 170 Okl. 63, 38 P.2d 500; 53 Am.Jur., Trial § 10; 88 C.J.S. Trial § 11. The rationale of this rule has been recognized in Texas for many years. Jordan v. Corley, 42 Tex. 284, and other cases cited in original opinion.
Defendant was entitled, of course, to a reasonable opportunity to learn of the trial setting, and this it had. It was charged with notice of the regular call of the docket on January 7, 1974, and a statement by the trial court judge during the hearing on the motion for new trial indicates that the firm representing defendant, or at least its older members, had been familiar for many years with the practice of the court to hold docket call on the first day of the term. It also appears that a formal written reminder of the January, 1974, docket call was mailed to a member of the firm several months in advance.
There are seven members in the firm, and their offices are located in Hereford, Texas, which is about 31 miles from Canyon, the county seat of Randall County. The attorney of record for defendant was in his office all day of January 7. According to his testimony, he could have driven to Canyon in approximately 30 minutes at that time. A lawyer practicing with the firm, either a partner or an associate, was in the Randall County Courthouse attending a call of the county court criminal docket during the time the docket of the 47th District Court was being called. He testified that he had discussed his criminal cases with the district attorney prior to the call of the county court docket and that he could have been in the 47th District Court if he had known the docket was being called there.
Defendant had an ample opportunity to prepare for trial between the filing of the suit on August 3, 1973, and the trial on January 7, 1974. If defendant or its counsel had attended the docket call, time would doubtless have been allowed to arrange for the attendance of any witnesses needed at the trial. Defendant was not entitled to any additional time to otherwise prepare the case after it was placed on the trial calendar.
Defendant apparently assumes that formal notice of the setting would
Even though the interpretation of
Under the provisions of Rule 329b, a judgment becomes final upon the expiration of 30 days from the rendition of judgment or order overruling a timely filed motion for new trial. After the expiration of that period, “the judgment cannot be set aside except by bill of review for sufficient cause.” The filing of the motion for new trial in the present case more than 10 days and less than 30 days after rendition of judgment did not operate to extend the trial court‘s power to modify or change the judgment beyond the period of 30 days after the date of its rendition. It has accordingly been held repeatedly that a trial judge has no power to set aside a final judgment more than 30 days after the date of its rendition. Deen v. Kirk, Tex. Sup., 508 S.W.2d 70; Universal Underwriters Ins. Co. v. Ferguson, Tex.Sup., 471 S.W.2d 28; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706.
Our decision in Phil H: Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, was on facts essentially similar to those of the present case. The trial court, which was governed by the Special Practice Act, entered a judgment purporting to be one by default against a defendant that had filed an answer but had no notice of the setting. A motion for new trial was filed by the defendant, and was granted by the district court, more than 30 days after rendition of the judgment. This Court held: (1) that it was beyond the power of the district court to set aside the judgment more than 30 days after its rendition; and (2) that the defendant‘s only remedy was by bill of review. A writ of mandamus was accordingly issued directing the district judge to vacate the order granting a new trial.
Unless the judgment here is void, defendant can obtain no relief in this mandamus proceeding. If a writ of mandamus should now issue directing Judge Jordan to set aside a judgment that is merely erroneous but not void, we would be ordering him to do that which he has no power to do. Defendant‘s right to relief in this proceeding thus turns on whether the judgment is void. We have never issued a writ of mandamus ordering a trial judge to set aside a final judgment that was voidable but not void at a time when the judge had
Public policy requires that judicial transactions be invested with the utmost permanence consistent with justice. Considerations of justice must be weighed then against the importance of maintaining the integrity of judgments as solemn records upon which valuable rights rest. A litigant should be provided some remedy to gain relief from an unjust judgment, but the judicial system cannot afford the luxury of ordering new trials for purposes of delay.
If the judgment in the present case is void, it will still be void 20 or 50 years hence. This does not mean that the judgment would be subject to collateral attack, because the facts upon which relator relies can be shown only by evidence outside the record. It would mean that any judgment heretofore rendered in a court governed by
The evidence concerning relator‘s alleged defense and counterclaim was not fully developed at the hearing on the motion for new trial. When counsel for relator began going into the matter, an objection was made and sustained. The trial court stated that he was assuming counsel thought he had a good defense. Defendant‘s vice-president did testify to a conversation he had with counsel for plaintiff in June before this suit was filed in September. The witness recalled having told the attorney that by July 15th he either would have the money to pay off the indebtedness involved in the present case or would be able to make a substantial payment and have a plan to pay the balance. This suggests that defendant‘s amended answer and counterclaim may have been filed as a matter of settlement strategy or to gain more time. During oral argument of the case here, counsel for defendant was asked from the bench what defense defendant had to the suit. There was no reply. It cannot be said with any degree of certainty, therefore, that the judgment in the present case is unjust or that the effort to set it aside in this mandamus proceeding is for any purpose other than delay or to obtain an opportunity to make an advantageous settlement.
Be all that as it may, if defendant was not at fault and had a meritorious defense or a legitimate compulsory counterclaim, it may obtain relief by bill of review. See Petro-Chemical Transport Inc. v. Carroll, Tex. Sup., 514 S.W.2d 240. In the event defendant establishes its right to a bill of review and is denied that relief in the trial court, it will be entitled to appeal from the judgment in the bill оf review proceeding. In our opinion due regard for the judicial system and the sound administration of justice requires that defendant be required to pursue that remedy rather than set the judgment aside in this mandamus proceeding without any inquiry as to whether it was at fault or had a meri-
We are not to be understood as expressing an opinion on any question of fault or concerning the merits of the asserted defense or counterclaim. The motion for rehearing is overruled. No further motion for rehearing will be entertained.
McGEE, DENTON, DANIEL and SAM D. JOHNSON dissent for the reasons stated in the dissenting opinion filed by DANIEL, J., on October 30, 1974.