Caldwell V. Barnes

This case arises from a bill of review proceeding that challenged a default judgment for lack of service. After holding a pretrial hearing and taking evidence on the question of whether a bill of review plaintiff had been served with process in the underlying lawsuit, the trial court issued a finding of fact that the plaintiff had been served and rendered judgment against him. The court of appeals affirmed. The issue before this Court is whether the plaintiff was entitled to submit the question of service to a jury at trial, or whether the trial court properly resolved the matter in a pretrial hearing. Because we conclude (1) that the plaintiff was entitled to submit the question of service to a jury at trial and the trial court erred by resolving the matter in a pretrial hearing, and (2) the plaintiff preserved his right to a jury trial, we reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.