Hughes v. Hughes ( 1949 )

BOND, Chief Justice

(dissenting).'

On original submission I voiced doubt as to affirmance of the judgment of the court below.; since, have reached the.conclusion that appellant’s motion for rehearing should be sustained 'and the judgment of the court below reversed and the cause remanded for a' new trial.' I record the grounds 'of my dissent as follows •

A bill of review, even if filed as a motipn, as here, is a new and independent cause and is subject to all of the requirements of service of citation upon a defendant.'

The only attempted service upon the appellant, a nonresident of Texás, was by service of a copy of the motion (bill of review) upon Melody Tune Douthit who was only the attorney for appellant upon other motions for increase of child support and for change of child custody. Appellant’s' only answer consisted of a plea to the jurisdiction and pleas in abatement based upon' the ground that there had been no service upon the appellant, and attacked the attempted service upon Melody Tune Douthit. The trial court overruled such pleas and proceeded immediately into the trial of the cause on its merits — over the objection of defendant.

These pleas but constituted an appearance of appellant at that time to have an adjudication of the sufficiency of the process and service. York v. State, 73 Tex. 651, 11 S.W. 869. There having been no service upon the appellant, the trial court errect in overruling such pleas.

I agree with the majority in its holding that by the filing of such pleas the appellant, submitted himself to the jurisdiction of the court for all purposes, but I am in serious disagreement as to when such filing constituted an appearance on the merits. The appellant had the right to file such pleas and to have an adjudication upon the lack or insufficiency of service; and under the. authorities the appellant then entered. his appearance for such adjudication. This, under all the authorities which I have been able to find,- was not .an 'appearance at that time in the case on its merits. Under Rule 122, Texas Rules of Civil Procedure, in the event the trial court sustains such pleas as it should do, the appellant would be deemed to have entered his appearance on the merits at the Monday next after the expiration of 20 days after the date upon' which said pleas were sustained.

Under the provisions of Rule 123, which is .a re-enactment of Article 2049, R.S., where a judgment is reversed on appeal for want of service or because of defective service of process, the appellant would be presumed to have entered his appearance at the term of the court at which the mandate should be filed.

Therefore, I am of the opinion that the judgment of the court below should be reversed and this cause remanded for new trial. The trial was not fully developed, appellant should have his day in court. I refrain from discussing the evidence; suffice to say, appellant has a meritorious defense.