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Rule 329. Motion for New Trial on Judgment Following Citation by Publication (1984)

TEXT

In cases in which judgment has been rendered on service of process by publication, when the defendant has not appeared in person or by attorney of his own selection:

(a) The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was signed. The parties adversely interested in such judgment shall be cited as in other cases.

(b) Execution of such judgment shall not be suspended unless the party applying therefor shall give a good and sufficient bond payable to the plaintiff in the judgment, in an amount fixed in accordance with Rule 364 relating to supersedeas bonds, to be approved by the clerk, and conditioned that the party will prosecute his petition for new trial to effect and will perform such judgment as may be rendered by the court should its decision be against him.

(c) If property has been sold under the judgment and execution before the process was suspended, the defendant shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale.

(d) If the motion is filed more than thirty days after the judgment was signed, all of the periods of time specified in rule 306a(7) shall be computed as if the judgment were signed thirty days before the date of filing the motion.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: This change conforms to the 1981 amendments to Rules 329b, 356, 386, and other rules that make the periods for appeal begin to run from the signing of the judgment rather than from overruling the motion for new trial.

ADVISORY OPINIONS

Question: "In a case in which judgment has been rendered on service of process by publica­tion, where the defendant has not appeared in person or by attorney of his own selection, and the defendant within two years after such judg­ment was rendered has filed a motion for new trial, supported by affidavit, showing good cause, is service upon the attorney of record for the plaintiff, by mailing a copy of such motion to the attorney of record, as provided in Rule 72, sufficient compliance with paragraph (a) of Rule 329 ?"

Answer: No. It appears that Rule 329 contem­plates actual service of citation. The requirement that the parties adversely interested in such judgment shall be "cited, as in other cases," is not met merely by mailing a copy of the motion to the attorney of record.

11 Tex. B.J. 276 (1948).