Guadalupe Lopez Et Al. v. Sylvestra F. Lopez Et Al‪.‬

The issue of concern in this appeal is whether a defendant, who is not notified of a trial setting and consequently does not appear, must nevertheless set up a meritorious defense in order to obtain a new trial. In an unpublished opinion, the court of appeals has held that regardless of the reason for defendants failure to appear or answer, the requirements of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), must be served. One such requirement is that the defendant support his motion for new trial with an affidavit which factually sets up a meritorious defense. Because Guadalupe Lopez, the defendant in the present case, did not do this, the court of appeals held that the trial court did not err in overruling his motion for new trial and affirmed the judgment of the trial court. A majority of the court reverses the judgment of the court of appeals as it pertains to Guadalupe Lopez and remands the cause for new trial because the decision of the court of appeals conflicts with Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988).