Baker v. Goldsmith , 22 Tex. Sup. Ct. J. 364 ( 1979 )

POPE, Justice,

concurring.

While I concur in the result, it is my view that we are unnecessarily confounding the trials of bill of review cases. I agree that the bill of review plaintiff must prove by a preponderance of the evidence that the pri- or judgment was rendered as a result of fraud, accident or wrongful act of the opposite party which was unmixed with any fault or negligence of his own or that there was an official mistake unmixed with the negligence on the part of the bill of review plaintiff. The majority at that point injects a new step into the trial that in my opinion is unnecessary, wasteful, and confusing.

The majority requires an interim hearing at which the bill of review plaintiff must satisfy the trial court by prima facie proof that he has a meritorious defense. That hearing is not the trial of the defense that counts; it is a preliminary showing of what one will prove when it does count. It is an additional and redundant hearing. Instead of saving time, it creates an extra sub-trial of uncertain nature and duration. The rules already authorize adequate proceedings by which a frivolous or non-meritorious claim to a defense can be exposed. A partial or complete summary judgment proceeding will expose the unmeritorious case. Rule 166-A, Tex.R.Civ.P. The court may order a separate trial of an issue as authorized by Rule 174(b), Tex.R.Civ.P.

When Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) was tried, the parties announced ready and tried the case to final judgment in one day. There was no trial before the trial. I would hold that a bill of review trial should be conducted as suggested in 4 McDonald, Texas Civil Practice § 18.29 (1971):

The controversy turns upon two issues: (I) Was the judgment complained of rendered as a result of fraud, accident, or mistake, without the negligence of the complainant either in the course of the former action or after judgment? (II) Was the judgment incorrect? The burden is upon the complainant to establish the affirmative of the elements of the first issue. If he does so, the burden of proof upon the second issue rests upon the party who would have had such burden had no judgment been entered.

That kind of a trial would certainly not be an erroneous one.