Schieffer v. Patterson , 1969 Tex. App. LEXIS 2896 ( 1969 )

PHILLIPS, Chief Justice.

This is a suit for damages for personal injury incurred in an automobile collision. Although duly served with citation, the defendant in the court below failed to file an answer. After hearing evidence of the damages sustained by the plaintiffs, the trial court entered default judgment against the defendant. Thereafter the defendant filed a motion to set aside judgment by default and asked for a new trial.

Following a hearing ón defendant’s motion, the trial court entered an order overruling defendant’s motion to set aside judgment by default and for new trial “except insofar as it asks for a new trial on the issue of damages” and granted defendant a jury trial on the damage issues only. An order was then entered granting defendant’s motion to sever the damage issues from all other issues in the case and the defendant appealed.

We dismissed this appeal for want of jurisdiction, 430 S.W.2d 290, however, the Supreme Court reversed our judgment of dismissal and remanded the cause to this Court for consideration on its merits, 433 S.W.2d 418.

Appellant is before this Court on seven points of error.¹ We sustain points of error one through seven which go to the basic insufficiency of appellees’ (plaintiffs below) petition to support the default judgment in question. In view of another trial we need not discuss point of error number eight.

The portion of appellees’ petition in issue here reads as follows:

“2.

“It has become necessary to bring this suit because of an automobile collision on November 21, 1966, at approximately 8:45 A.M. On that occasion Joy C. Patterson was driving a 1965 Rambler and defendant was driving a 1966 Mustang. The collision occurred at the intersection of Briarwood and Penny Streets in Austin, Texas. The said collision was caused by one or more negligent acts and omissions on the part of defendant, and it resulted in property damages to both plaintiffs and serious personal injuries to Joy Patterson.

“3.

“As a result of the personal injuries and property damages sustained by plaintiffs, their total damages will exceed the minimum jurisdictional limits of this Court.”

We hold that the allegations in appel-lees’ original petition are insufficient to support a default judgment. There is no allegation of any fact showing any duty owed by appellant to appellees with respect to whatever act or omission on appellant’s part claimed as negligence. There is no allegation of any act or omission on appellant’s part claimed as negligence. There is no allegation as to the nature, extent or duration of the personal injuries of appellee Joy C. Patterson. There is no allegation or prayer as to the amount of damages sustained by appellees other than it “will exceed the minimum jurisdictional limits” of the trial court. White v. Jackson, 358 S.W.2d 174 (Tex.Civ.App. Waco, 1962, writ ref. n. r. e.); White Motor Company v. Loden, 373 S.W.2d 863 (Tex.Civ.App. Dallas 1963, no writ); Stinson v. Jones, 434 S.W.2d 212 (Tex.Civ.App. Beaumont 1968, no writ).

Appellees have urged upon this Court certain language supporting a default judgment in the opinion of the Supreme Court in Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958). The default judgment in Edwards was not appealed but was attacked two years later as being void. There is no contention in the case at bar that the judgment is void but that the petition upon which it is based is insufficient, that a money judgment cannot result therefrom. Consequently, appeal was duly perfected here alleging the error complained of.

The trial court’s order overruling defendant appellant’s amended motion to set aside judgment by default and for new trial with respect to liability issues is hereby reversed and this cause is remanded to the trial court with instructions to set aside the default judgment in its entirety and to grant appellant a new trial on all issues.

Reversed and remanded with instructions.

1 . POINT OF ERROR 1: The trial court erred in rendering default judgment, because the allegations in plaintiffs’ original petition are not sufficient to support a default judgment, since no facts or circumstances are alleged therein from which it could be found that defendant breached any duty whatsoever which he might have owed plaintiffs in connection with whatever act or omission of the defendant is claimed as negligence; POINT OF ERROR 2: The trial court erred in rendering default judgment, because the allegations in plaintiffs’ original petition are not sufficient to support a default judgment, since no act or omission whatsoever of defendant is alleged therein which could constitute negligence; POINT OF ERROR 3: The trial court erred in rendering default judgment in any amount, because there is no allegation in plaintiffs’ original petition of plaintiff Mrs. Patterson’s personal injuries or the nature, extent, or duration thereof resulting in damages to plaintiffs; POINT OF ERROR 4: The trial court erred in rendering default judgment for $58,948.55, because the allegations in plaintiffs’ original petition could in no event support a judgment substantially in excess of $500.00; POINT OF ERROR 5: The trial court erred in rendering the default judgment for $58,948.55, because plaintiffs’ original petition did not give defendant notice as to the nature of plaintiffs’ claim and the relief sought as required by the Fourteenth Amendment of the Constitution of the Xbuted States, and as also required by Article 1, Section 19, of the Constitution of the State of Texas; POINT OF ERROR 6: The trial court erred in rendering default judgment, because plaintiffs’ original petition does not set forth sufficient facts and circumstances constituting their cause of action to give defendant fair notice of the basis for their claim; POINT OF ERROR 7: The trial court erred in rendering the default judgment for $58,948.55, since plaintiffs merely alleged that their total damages exceeded the minimum jurisdictional limit of that court.