Winship v. Gargiulo

Texas Supreme Court

Winship v. Gargiulo

761 S.W.2d 301, 32 Tex. Sup. Ct. J. 69, 1988 Tex. LEXIS 125, 1988 WL 124234

CourtTexas Supreme Court

DecidedNovember 23, 1988

DocketC-7893

StatusPublished

Cited by7 cases

This text of 761 S.W.2d 301 (Winship v. Gargiulo) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Winship v. Gargiulo, 761 S.W.2d 301, 32 Tex. Sup. Ct. J. 69, 1988 Tex. LEXIS 125, 1988 WL 124234 (Tex. 1988).

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Opinion

PER CURIAM.

Pursuant to the Soldiers’ and Sailors’ Civil Relief Act, Paul Winship is seeking to set aside a default judgment taken in a personal injury case. See 50 U.S.C.App. § 520 (1982). The trial court ruled that it was without jurisdiction to consider the motion, and that if it did have jurisdiction, Winship had failed to show that his military service prejudiced his ability to make a defense to the claim asserted against him. The court of appeals affirmed. 754 S.W.2d 360. We deny Winship’s application for writ of error.

In denying the writ, however, we note our disapproval of the court of appeals’ characterization of this motion. The court of appeals attempted to classify this action as either a motion for new trial or a bill of review. It is neither. The statute clearly creates a distinct right for which relief may be sought. See Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945); Arenstein v. Jencks, 179 S.W.2d 831 (Tex.Civ.App.—San Antonio 1944, writ dism’d w.o.j.); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2692 (1983). There is no reason that this federally created procedure should be required to fit within one of our state’s existing procedures for vacating a default judgment. The application for writ of error is denied.

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PER CURIAM.

Pursuant to the Soldiers’ and Sailors’ Civil Relief Act, Paul Winship is seeking to set aside a default judgment taken in a personal injury case. See 50 U.S.C.App. § 520 (1982). The trial court ruled that it was without jurisdiction to consider the motion, and that if it did have jurisdiction, Winship had failed to show that his military service prejudiced his ability to make a defense to the claim asserted against him. The court of appeals affirmed. 754 S.W.2d 360. We deny Winship’s application for writ of error.

In denying the writ, however, we note our disapproval of the court of appeals’ characterization of this motion. The court of appeals attempted to classify this action as either a motion for new trial or a bill of review. It is neither. The statute clearly creates a distinct right for which relief may be sought. See Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945); Arenstein v. Jencks, 179 S.W.2d 831 (Tex.Civ.App.—San Antonio 1944, writ dism’d w.o.j.); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2692 (1983). There is no reason that this federally created procedure should be required to fit within one of our state’s existing procedures for vacating a default judgment. The application for writ of error is denied.

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Bluebook (online)

761 S.W.2d 301, 32 Tex. Sup. Ct. J. 69, 1988 Tex. LEXIS 125, 1988 WL 124234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winship-v-gargiulo-tex-1988.

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