W. P. French v. Homer Brown

Petitioner sued Respondent for the reasonable value of labor and materials allegedly furnished Respondent under a contract to paint a house. Respondent was served with citation and duly filed an answer in the form of an unsworn general denial. Thereafter Petitioner filed a motion for summary judgment which was set for hearing by order of the court. The parties stipulated that notice of the motion for summary judgment and of the hearing thereon was "duly and regularly mailed, but that the notice was not received." The court granted Petitioners motion for summary judgment on the date set for hearing. Neither Respondent nor his counsel was present, but within ten days Respondent filed a motion for new trial asserting defenses against Petitioners suit and that neither Respondent nor his attorney of record had notice of the filing of Petitioners motion for summary judgment or of the date the motion was set for hearing. The motion for new trial was subsequently overruled by operation of law. Respondent did not perfect an appeal and the judgment became final. Respondent thereafter filed a bill of review attacking the judgment in which he again urged the matters previously asserted in his motion for new trial. The petition for bill of review was silent with respect to Respondents failure to prosecute an appeal from the judgment upon the overruling of his timely motion for a new trial. The trial court after hearing without a jury denied the relief from which action this appeal was taken. The court of civil appeals was of the view that the trial court was without jurisdiction to enter the judgment because Respondent was not served with the summary judgment motion as required by Rule 166-A, Texas Rules of Civil Procedure, for which reason the judgment was void. The judgment was accordingly reversed and the cause remanded to the trial court. Tex.Civ.App., 413 S.W.2d 924.