Opinion
No. 4271.
December 16, 1932. Rehearing Denied January 19, 1933.
Appeal from Hopkins County Court; J. J. Murray, Judge.
Suit in the nature of a bill of review by J. I. Stevenson against J. K. Thomas and others, to set aside a judgment previously entered in favor of the defendants. From a judgment in favor of the defendants, the complainant appeals.
Affirmed.
This appeal is from a decree of the county court of Hopkins county, denying appellant Stevenson the relief prayed for through a bill in equity, in the nature of a bill of review, seeking to set aside a judgment of that court entered April 6, 1931, in cause No. 3341, styled J. K. Thomas et al. v. J. I. Stevenson, wherein the plaintiffs recovered judgment against Stevenson for $600.
It appears that said cause No. 3341 was filed by J. K. Thomas and United States Fire Insurance Company as plaintiff, against J. I. Stevenson as defendant, in the county court at law, Tarrant county. It was filed January 24, 1930, for damages resulting from a motor-truck accident on October 8, 1929. Plaintiffs' petition alleged that a truck owned by J. K. Thomas, operated by one of his employees, proceeding on a highway between Bonham, Tex., and Royse City, Tex., in a westerly direction, was carrying a cargo of mules which belonged to certain shippers, when a truck belonging to defendant, proceeding in an easterly direction, negligently sideswiped plaintiff's truck, damaging the truck, killing one mule, rendering another worthless, and injuring three others, all to plaintiff's damage in the sum of $600, for which plaintiffs prayed judgment.
Defendant Stevenson's plea of privilege was granted, and the case was transferred to Hopkins county, and filed there March 21, 1930. His original answer consisting of general demurrer and general denial was filed April 15, 1930. His attorneys by letter requested the county clerk to let them know if the case should be set for trial. The answer seems to have been noted on the clerk's fee book, but the answer itself was misplaced or lost. Neither Stevenson nor his attorneys made further inquiry about the case. Four terms of court went by, and on the first day of the fifth term after the case had been docketed in Hopkins county, the case being called, plaintiffs announced ready, and the court, after hearing two witnesses, rendered judgment for plaintiffs for the amount sued for on April 6, 1931, reciting in the judgment that the defendant "Came not, but wholly made default."
One of the plaintiffs' attorneys, by letter dated May 29, 1931, advised Stevenson of the judgment against him. Stevenson's attorney testified that he learned of the judgment about June 11, 1931, after the expiration of the term of court at which the judgment was entered. A bill in equity for review of the case against him was filed by defendant Stevenson, complainant here, August 14, 1931.
Complainant pleaded in the court below, and here contends, that the judgment entered against him April 6, 1931, should have been set aside by the trial court, for the reason that he had a meritorious defense which he was at all times willing to present, and which he was prevented from urging because the case went to trial without notice to him or his attorneys, because of the failure of the appellees to proceed with the trial for four terms of court, covering a period of one year, thereby indicating to him that the case had been abandoned, and because of a mistake of fact on the part of the court and attorneys for appellees in thinking an answer had not been filed when one had actually been filed for approximately one year before judgment was taken, and because appellees' Fort Worth attorneys were not only acquainted with complainant's attorneys, but knew they were representing him in the case, and that they should have been notified that appellees were ready for trial. After hearing evidence of this plea, it was denied by the trial court, and that ruling is complained of on this appeal.
Ramey Fanning, of Sulphur Springs, and Massingill Belew and Homa S. Hill, all of Fort Worth, for appellant.
Brim Spence, of Sulphur Springs, Wm. C. Menton and H. C. Bishop, both of Dallas, and G. L. Robertson, of Fort Worth, for appellees.
This record shows from the testimony of the county clerk that the county court of Hopkins county does not indulge the custom of setting cases for trial on special days, but just calls the docket, and "they are called the way they appear on the docket." It is also noted that complainant's attorney, who lived in Fort Worth, wrote the county clerk in April, 1930, to the effect that he would appreciate being advised of any setting of the case, whereupon the clerk returned the following notation: "Beg to advise the case has not been set, however we have a jury for Monday, April 28th." According to the record, complainant did not make further inquiry by letter, visit, or otherwise to see if the case was on the jury docket, to see when it would be called, to learn anything of the local rules or customary procedure of the court, and in no way or fashion make contact with the court or with appellees' attorneys for a period of one year, and until judgment had been entered. Appellees' attorney, Brim, testified that he searched the court papers before and after judgment had been taken to see if complainant had filed an answer, but found none.
This court is cognizant of the well-established custom and highly commendable practice among attorneys jealous of the ethics of their profession to refrain from taking a judgment without notifying opposing counsel when they are known to represent the opposite side of the litigation. On the other hand, no legal duty rests upon either attorney to protect the other's client from injustice; and one who has not been diligent in guarding his interests will not be heard by a court of equity to complain of injustice resulting from his lack of diligence. To be entitled to relief on a bill of review, complainant must not only show that he has a meritorious defense, but that failure to present it was not due to his own negligence. No legal duty rests on the clerk of the court to keep either party informed of the proceedings or rules of the court. Maytag Southwestern Co. v. Thornton (Tex.Civ.App.) 20 S.W.2d 383; Goss v. McClaren, 17 Tex. 107, 67 Am.Dec. 646; Smith v. Ferrell (Tex.Com.App.) 44 S.W.2d 962, 963; Wagley v. Wagley (Tex.Civ.App.) 230 S.W. 493.
Without passing upon the charge that complainant was unjustly deprived of his right to present his defense because of mistake or improper motives on the part of appellees' attorneys, we find that complainant did not exercise sufficient diligence in guarding his rights to entitle him to call upon a court of equity to correct the injustice. We see no reason why complainant's attorney should have assumed that appellees had abandoned their case. Did not appellees have equal reason to assume that complainant had abandoned his defense?
Complainant insists he is entitled to relief because appellees' petition in the original suit is insufficient in law to support a judgment and that therefore the judgment therein is void. We have examined that petition as it appears in the record brought to us for review. Although we think it subject to special exceptions, we do not think it subject to general demurrer, and we are therefore unwilling to declare void the judgment based thereon.
The judgment is affirmed, and costs adjudged against appellant.