Goldsmith v. Baker , 567 S.W.2d 590 ( 1978 )

SHANNON, Justice,

concurring.

I concur in the opinion of Justice O’QUINN that the judgment of the district court be reversed.

A movant in a bill of review proceeding seeks to invoke the equitable powers of the Court to set aside a previous judgment and enter a new judgment. Dosamantes v. Dosamantes, 500 S.W.2d 233, 238 (Tex.Civ.App.1973, writ dism’d). He must first demonstrate that he has a meritorious defense to the original suit before a court of equity will set aside the default judgment. Overton v. Blum, 50 Tex. 417, 425 (1878). If the movant has no meritorious defense to the suit on the merits, setting aside the judgment would be a vain act and a trespass on the court’s time not countenanced by equity. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

The movant is required to do more than specifically plead a meritorious defense. He has the burden to produce some evidence of the meritorious defense to the original cause of action. Overton v. Blum, supra; Humphrey v. Harrell, 29 S.W.2d 963 (Tex.Comm’n App.1930, judgment adopted); Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974); Hollis v. Seibold, 23 S.W.2d 811 (Tex.Civ.App.1929, writ dism’d); Crosby v. Di Palma, 141 S.W. 321, 325 (Tex.Civ.App.1911, writ ref’d). If he fails to produce some evidence of a meritorious defense, the court should deny the bill of review.

The movant has the additional burdens of production and persuasion of the other requirements of the bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). If the movant satisfies the initial burden to produce evidence, then the parties are relegated to their original posture “ . . . with the burden of proof resting upon the plaintiff to make his case, leaving the defendant the right . to rely merely upon the weakness of his adversary’s case.” Crosby v. Di Palma, supra.

If a jury case, the court submits special issues inquiring whether the default judgment came about through the fraud, accident, or wrongful act of another unmixed with any negligence of movant. The special issues submitting the merits of the original case are conditioned upon favorable answers to the special issues submitting the elements of the bill of review. Of course, if the movant asserted affirmative defenses, he has the usual burdens of production of evidence and persuasion on those issues.