Barton v. Pacific Employers Indemnity Co.

NYE, Chief Justice

(concurring).

It is evident to me that neither the legislature nor the Courts of Texas ever intended to permit one party to abrogate another party’s rights without proper notice. Under the workmen’s compensation statutes, notice is required of every step in the proceedings. Even though Article 8307, Section 5 does not specifically require notice of a non-suit, the legislature intended that such be the case. The amendment of the statute under Article 8307d which is now in effect reflects such intent. Although Rule 164, T.R.C.P. would indicate that a party has a right to take a non-suit and that such right is absolute and cannot be denied, our Constitutions, both state and federal, prohibit such action.

I know of no other situation in the law where a party’s rights could be completely destroyed, finally, and without effective appeal, than in this situation, if a non-suit were sanctioned. There is no place in the law for permanent relief, to any party, in a court of law, without proper notice. Even though the Texas Rules of Civil Procedure do not provide for such notice, our Constitutions do. Tex.Const. Art. 1, § 19; U.S.C.A. Const. Amend. Y, XIV. “. . . nor (shall a person) be deprived of life, liberty, or property, without due process of law; Every person is entitled to due process of law. There cannot be due process without proper notice. See Armstrong v. Manzo, 371 S.W.2d 407 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e., 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).