Opinion
No. 4455.
February 23, 1934. Rehearing Denied March 1, 1934.
Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
Action by J. N. McCasland against H. M. Ralston and others. To set aside a judgment in favor of the plaintiff, Mrs. Mattie A. Dennis, joined pro forma by her husband, brought a bill of review, and, from an order denying a new trial upon the bill of review, they appeal.
Affirmed.
On November 12, 1932, in the district court, the appellants brought a bill of review, as authorized by article 2236, R.S., to set aside a judgment in favor of appellee rendered on service of process by publication. On December 9, 1932, upon hearing, the court by an order duly entered of record refused to grant a new trial. From the order denying a new trial upon the bill of review, the appellants have appealed.
It was proven that on April 6, 1932, the appellee had filed suit in the district court against H. M. Ralston and the "Unknown Heirs of H. M. Ralston" in trespass to try title and to remove cloud upon title of certain land described. It was alleged that the residence of H. M. Ralston was "unknown to plaintiff," and that the plaintiff did not know whether or not H. M. Ralston was living or dead, and that the names as well as the residence of the heirs of H. M. Ralston were "unknown to plaintiff." In keeping with the terms of the affidavit filed with the petition that the residence of the parties defendants named therein was unknown to the affront, a citation was issued on April 6, 1932, addressed to H. M. Ralston and the unknown heirs of H. M. Ralston, and returnable to the May term of the court, 1932. The citation was published in a newspaper in Marion county, Tex., for the length of time of each week for four consecutive weeks, and the sheriff made a verified return as required by statute. Thereafter, at the first regular term of court, which convened on May 9, 1932, a practicing attorney was appointed to represent H. M. Ralston and the unknown heirs of H. M. Ralston, and the attorney duly filed answer in the case. The case was tried on May 14, 1932, and judgment entered for the plaintiff for the land including the iron and all minerals under the land. The testimony produced in the trial, was taken down, and the transcript thereof agreed to and signed by the attorneys for the plaintiff and the attorney appointed to represent the defendants named and cited by publication. The transcript of evidence so agreed to was filed with the clerk of the district court on May 16, 1932, as a part of the record of the cause. The court finally adjourned for the term on June 4, 1932.
The bill of review was instituted by Mrs. Dennis, joined pro forma by her husband, as only heir to H. M. Ralston, deceased. The bill set up, first: "H. M. Ralston is dead, and that he died many months before the filing of the suit (by plaintiff) and that said H. M. Ralston has never been a resident of the State of Texas, but was a resident of the State of Illinois: that the wife of H. M. Ralston is dead and he and his wife never had any children; that the father and mother of H. M. Ralston are dead; that your petitioner is the only living heir of the said H. M. Ralston."
Further: "That plaintiff's petition was filed April 6, 1932, and that no personal service was ever obtained on this applicant and the only service was on the unknown heirs of H. M. Ralston by publication; that applicant is a nonresident of Texas and never has resided in the State of Texas, but is and has been for years a resident of the State of California; that applicant did not know of the filing of the suit by J. N. McCasland until she came to Marion County a few days after the trial of said cause and after judgment had been entered for plaintiff in the suit on May 14, 1932; that applicant had not appeared (in the said cause) nor did she have any attorney of her selection to represent her."
Further, as to the claim and defense of the applicant: "On the 18th day of January, 1889, S. J. and M. J. E. Leverett executed to H. M. Ralston a mineral or iron ore deed, conveying to said H. M. Ralston `All the iron ore and any and all other ores and all minerals in and under the land' described in the plaintiff's petition and that H. M. Ralston never before his death sold, transferred or conveyed the title to same to any one; that at the death of said H. M. Ralston the said property descended to applicant, and that she has never conveyed same to any one; that the plaintiff (McCasland) long after the said mineral deed of record, and under which H. M. Ralston had acquired title to the minerals, bought the land, and by right of being owner of the land and being in possession of the surface rights of the land, he now undertakes to claim title to the land itself and also to the mineral under the land, which belongs to H. M. Ralston or to his heirs, that no effort has ever been made to develop and to take out from and under the said land, either oil or other minerals, except perhaps certain iron ore located on the surface thereof; that neither H. M. Ralston nor this applicant ever having been residents of Texas, and both at all times being nonresidents of the State, and your applicant now being a non-resident of Texas, the plaintiff, in law could not claim title to the property under the law of Texas, governing limitation title."
It was proven that on January 18, 1889, S. J. Leverett and his wife, M. J. E. Leverett, granted and conveyed to "Henry M. Ralston of the City of Chicago, Cook County, Illinois," namely: "All of the iron and any and all other ores and all minerals of every character in, upon and in any manner belonging or appertaining to or under the following described two hundred and twenty-eight acres of land (here follows description)."
The deed was duly registered on January 28, 1889. In 1904 Mrs. Leverett, surviving wife of S. J. Leverett, deeded to J. N. McCasland, with warranty of title, the land above described. The deed was duly registered. That was the home of J. N. McCasland and his family, and he has occupied, used, and cultivated it since the date of purchase, about twenty-eight years. During that period of time no one has ever claimed or interfered or disputed the rights of J. N. McCasland, or contested his executing, as done, mineral leases to the land.
The evidence does not warrant a finding of fact that Mrs. Dennis and her husband knew of the pendency of the suit before the convening of the May term of court in 1932. But the evidence fully warrants the findings of fact by the trial court, namely:
"1. I find that on the 17th day of May, 1932, and several days before District Court adjourned (on June 4, 1932) that Mrs. Mattie A. Dennis and her husband were in the City of Jefferson, Texas, and knew of (was informed of) the rendition of the judgment and read the judgment, and employed counsel to represent them in the litigation. I find that she (Mrs. Dennis) did not give notice of appeal from the judgment nor did she file a motion for new trial.
"2. I further find that no action was had on said judgment until November 1, 1932, when Mrs. Dennis and her husband filed this bill of review to have the judgment set aside. No fraud or misrepresentation were made to Mrs. Dennis in securing the judgment aforesaid."
The court concluded that: "The applicant having notice of the rendition of the judgment in ample time to have filed a motion for new trial that this application or motion can not at this time be entertained, and it is therefore denied."
Mrs. Dennis testified: "I arrived in Jefferson on May 17, 1932, and was advised by the clerk of the district court that judgment had been rendered the previous Saturday. I found out the name of the attorney that had been appointed to represent us in the suit. The clerk introduced me to him on that date of May 17, 1932, and on that date I consulted with him about the case. On that date I read the judgment which had been rendered in this suit. I remained in Jefferson and Texarkana, Texas, for several days after this judgment was rendered. I understand the district court was then in session. During the time I was in the neighborhood I had several conferences and consultations with an attorney. While the district court was in session I employed and made arrangements with an attorney to represent me and to act as my attorney in this suit."
Rowell Rowell, of Jefferson, for appellants.
A. G. Schluter, of Jefferson, for appellee.
It is believed it may not properly be held that the facts and special circumstances show, as a matter of pure law, insufficient reason for overruling the bill of review and refusing to grant a new trial in the cause. Under express provision of the statute, applications for new trial in general must be made during the term of the court at which the judgment or decision was rendered. Article 2092, as amended by Acts 1930 (5th Called Sess.) c. 70, 1 (Vernon's Ann.Civ.St. art. 2092), and article 2232, R.S. The exception, as provided by article 2236, is in cases only in which judgment has been rendered on service by publication. As provided, by bill of review, as termed, the aggrieved party can make application to the court within two years after such judgment was rendered to grant a new trial and set aside the judgment, although the time for the filing of the motion in general for new trial has passed. In nature of proceeding it amounts to no more than a motion for new trial permitted by the statute to be filed and heard after the judgment of the court and within two years after the judgment was rendered. Wiseman v. Cottingham, 107 Tex. 68, 174 S.W. 281; Wolf v. Sahm (Tex.Civ.App.) 120 S.W. 1114, 1116; 25 Tex.Jur. § 170, p. 567; 17 Tex.Jur. § 24, p. 26. This method is not by its terms made the exclusive method by which a new trial may be obtained on service of process by publication. The statute is not mandatory, rather than of discretion, clearly entitling the complainant to a new trial simply because the judgment is rested on process by publication. As worded, there is imposed the condition "of the defendant showing good cause" in his application for the granting of a new trial. This means that the applicant must show and prove a meritorous defense, Strickland v. Baugh (Tex.Civ.App.) 169 S.W. 181; Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905, and an excuse for failure to avail of the legal remedy of appeal, Home Ben. Ass'n of Henderson County v. Boswell (Tex.Civ.App.) 268 S.W. 979; Hiltbrand v. Hiltbrand (Cal. Sup.) 23 P.2d 277. An element of "good cause" is the want of timely actual notice of the pendency of or rendition of judgment in the suit. Dunlap v. Wright (Tex.Civ.App.) 280 S.W. 276. A bill of review, therefore, is not available when a motion for new trial is timely available as here. The trial court's conclusion, based on the special facts, may not be set aside. The applicant had actual notice of the rendition of the judgment, read it, and employed counsel to represent her in the litigation. From May 17th, the day she read the judgment, to June 4th, when the term of the court ended and the final adjournment of the court, there was open to her as much as nearly eighteen days within which to file a formal motion for new trial and to appeal therefrom.
The judgment is affirmed.