Dunlap v. Wright

280 S.W. 276, 1925 Tex. App. LEXIS 1197

• Court: Court of Appeals of Texas
• Decided: November 12, 1925
• Docket: No. 270.
• Status: Published

Opinions

GALLAGHER, C. J.

This is an appeal from a judgment denying a new'trial in a case in which service was had by publication. Appellant, Daniel D. Dunlap, purchased from appellee, F. D. Wright, two lots in an addition to the city of Wortham in Freestone county. He paid $250 cash, and gave two notes for $150 each. He paid the first note when due. He was notified of the maturity of the second note by the First State Bank of Wortham, which held the same for collection. He made some attempt to get in communication with appellee for the purpose of securing an extension, but failed to do so. He did see the real estate agent through whom he purchased said lots. He claimed such agent assured him that an extension would be agreeable to appellee. Said agent seems to have been without authority in the premises, but he testifies that he told appellant that he felt sure appellee would extend the note, but that he would have to see appellee in person.

The second and last note matured May 1, 1922. Appellee instituted suit thereon on September 19, 1922, and caused citation to issue thereon to Limestone county. Said citation was returned unexecuted. Appellant at that time resided in the city of Mexia in said county, and his address was Kemp building, Mexia, Tex., which address was known to said First State Bank of Wortham. Appellant moved to Cisco, December 1, 1922, and resided there until about April, 1923, when he moved to Los Angeles, Cal., where he has since continuously resided. Appellee testified that he made some inquiries in Mexia in an attempt to locate appellant, but was unable to do so. On January 2, 1923, affidavit for citation by publication was filed and service by publication had. On May 30, 1923, judgment was rendered against appellant ip favor of appellee for the amount of said note, with interest and attorney’s fees, and for foreclosure of the vendor’s lien. Order of sale was issued, and the property sold thereunder to appellee for the sum of $100. Except as above stated, no demand was made upon appellant for payment of said note. He testified that he was at all times ready, willing, and able to pay the same, and would have paid the same had he been required to do so. He had no notice of the institution of said suit nor of the judgment rendered therein nor of the sale of his property thereunder until January, 1925.

Appellant, on.January 22, 1925, which was within two years after the rendition of said judgment, filed in said cause a bill of review in the nature of a motion for new trial. For defense to the cause of action asserted in said suit, appellant alleged that he was ready, willing, and able to pay appellee’s demand in full, and for the purpose of paying the same and all expenses incident thereto, he deposited in the registry of the court the sum of $300, which sum is conceded to be sufficient for said purpose. Appellant’s said motion was submitted to the court and overruled, and a new trial denied. This order or judgment of the court is presented to us for review by this appeal.

Article 2026, Oomplete Texas Statutes 1920 or Vernon’s Sayles’ Ann. Oiv. St. 1914, provides, in substance, that in cases in which judgment has been rendered on service of process by publication and the defendant has not appeared in person or by attorney of his own selection, a new trial may be granted by the court upon the application of the defendant for good cause shown. Good cause, as used in said statute, is shown in such cases when it is made to affirmatively appear that the defendant had no actual notice of the pendency of such suit, and that he has a meritorious defense to either the whole or a part of the cause of action asserted therein, the presentation of which would probably have resulted in the rendition of a different judgment. Kitchen v. Crawford, 13 Tex. 516, 522; Wiseman v. Cottingham, 107 Tex. 68, 72, 174 S. W. 281, 282. The cause of action asserted in this suit by appellee was his right to a recovery in the amount of his debt, which was evidenced by the note sued on, áhd his right to a decree foreclosing his vendor’s lien on the lots for which said note was given, and directing the sale of the same in satisfaction of such recovery. Appellant had the right, and, if he had been served in person with process or had had actual notice of the pendency of the suit, he would have had the opportunity to answer therein and tender the full amount of appellee’s demand, and thereby discharge the lien on his lots and prevent their seizure and sale to satisfy such demand. Such answer and tender would have constituted a complete defense to ap1-pellee’s demand for foreclosure. Appellant was denied the opportunity to exercise such right and to interpose such defense because of his lack of knowledge of the pendency of the suit.

Appellee seeks to sustain the action of the court in overruling appellant’s motion on the ground that appellant knew where apu pelloe resided, and that he was still the holder of the note; that the same had been, in effect, presented for payment by the notice sent to appellant by said bank; that appellant left the neighborhood and located at a distant point in the state, leaving appellee in ignorance of his whereabouts; and on the further ground that there was testimony tending to show that the sum bid by appellee for said lots was the fair value of the same at the time. We do not think the matters so relied on constitute in themselves any bar to the relief sought by appellant in this proceeding. It is but a continuance of the original suit, and does not possess the character of an independent action in eguity to review said judgment. While this application is by the terms of the statute called a bill of review, it amounts to no more than a motion for a new trial, permitted by virtue of the statute to be filed and heard after the adjournment of the term. Houston Oil Co. v. McCarthy (Tex. Com. App.) 245 S. W. 651, 653. Appellant’s default in not paying the debt before suit did not deprive him of his legal right to pay the same in full at any time before final judgment and thus prevent a foreclosure. It is sufficient if a legal defense is- shown. Fred v. Fred, 58 Tex. Civ. App. 574, 126 S. W. 900, 901; Miles v. Dana, 13 Tex. Civ. App. 240, 36 S. W. 848, 851. Neither was his right to a new trial in any way abridged because he changed his place of residence, and appellee did not know his whereabouts. The sum bid by appellee for the lots at the sale under his foreclosure was materially less than the amount of his judgment. He was charged by law with knowledge o-f appellant’s right to institute this proceeding and upon proper showing to vacate said judgment, and he and those, if any, claiming under him hold said lots subject to the exercise of such right by appellant. Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662 (writ refused).

A liberal discretion should be employed in the granting of a new trial under this statute. It is plainly authorized where it appears that a defendant was cited by publication, that he did not know of the pendency of the suit, and that he has a good defense thereto in whole or in part, which he was denied the opportunity of presenting, and where it further appears that his application is made in accordance with the statute. Wise-man v. Cottingham, supra. Appellant, by proving the allegations of his motion for new trial, and by tendering and paying into the-registry of the court the full amount of appellee’s demand, together with all costs incurred, showed sufficient cause for the award of a new trial, and the court erred in denying the same. The note sued upon was not introduced in evidence, and we are therefore without sufficient data to determine the amount of appellee’s debt at this time, and cannot render judgment therefor.

The judgment of the trial court is reversed, and the cause is remanded.