in Re Liberty-Dayton Hospital, Inc. and Sean Stricker ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-051 CV ____________________

IN RE LIBERTY-DAYTON HOSPITAL, INC. AND SEAN STRICKER

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Original Proceeding

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MEMORANDUM OPINION ⁽¹⁾  

Liberty-Dayton Hospital, Inc. and Sean Stricker seek a writ of mandamus to compel the trial judge to set aside a default judgment taken by the real party in interest, Alice Wordlaw, against co-defendants Merrimon Baker, M.D., and Merrimon Baker, M.D., P.A.. Relators allege that Wordlaw obtained the default judgment against the Baker defendants without notice to the relators as required by Rule 21, Texas Rules of Civil Procedure. Trinity Universal Ins. Co. v. Briarcrest Country Club Corp., 831 S.W.2d 453, 456 (Tex. App- Houston [14th Dist.] 1992, no writ).

After reviewing the petition and record, and taking judicial notice of the record filed in Baker's appeal, ⁽²⁾ we conclude that the relators have not shown that appeal is not an adequate remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992).

The Relators' request for emergency stay of proceedings in the trial court is denied. The petition for writ of mandamus, filed February 2, 2004, is DENIED.

PER CURIAM

Opinion Delivered February 12, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.

2. The appeal, Baker v. Wordlaw, No. 09-03-00498 CV (Tex. App.-Beaumont February 12, 2004, no pet. h.), is being dismissed today upon the voluntary motion of the appellants.