Hicks v. Wallis Lumber Co. , 137 S.W.2d 93 ( 1940 )

This suit is in the nature of a bill of review to set aside a judgment in cause No. 2233, in the District Court of Zavala County, styled Wallis Lumber Company v. B. Hicks et al., for the sum of $3,506.50, and foreclosing a mechanic's and materialman's lien for the sum of $458.57 of that amount. The judgment was entered November 20, 1934, and this suit was filed after the expiration of the term at which the judgment was entered.

Appellees submit a counter proposition calling the attention of this court to the fact that plaintiffs in error B. Hicks and Laura Hicks did not offer any evidence below tending to establish the fact that they were prevented from presenting any meritorious defenses which they may have had to the original suit by any fraud, accident or acts of the defendant in error, Wallis Lumber Company.

Before a party is entitled to have a judgment set aside by a procedure in the nature of a bill of review he must first show by competent evidence that he had a meritorious defense to the cause of action, and that he was prevented from presenting such meritorious defense by some fraud, accident or the wrongful acts of the opposing party, unmixed with any fault or negligence of his own. Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; Gehret v. Hetkes, Tex.Com.App., 36 S.W.2d 700.

Plaintiffs in error having failed to make such proof the trial court properly rendered judgment that they take nothing by reason of their suit.

The above holding renders it unnecessary to pass upon the propositions presented in plaintiffs in error's brief.

The judgment of the trial court is affirmed.