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Rule 753. Judgment by Default (1947)

TEXT

Said cause shall be subject to trial at any time after the expiration of five full days after the day the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, the same shall be taken to constitute his appearance and answer in the county court, and such answer may be amended as in other cases. If the defendant made no answer in writing in the justice court, and if he fails to file a written answer within five full days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly.

Amended by order of Aug. 18, 1947, eff. Dec. 31, 1947: Former wording commencing "and if the defendant" and ending "for trial" has been eliminated and that commencing "If the defendant" and ending "county court" has been added, and there has been change in punctuation.

ADVISORY OPINIONS

(No. 21) Question: In view of Rules 751 and 753, may a defendant be forced to trial or a default judgment he taken against him, in the instance of an appeal in a forcible entry and detainer proceeding, be­fore appearance day in the county court?

Answer: There is an apparent incon­sistency between Rules 751 and 753. Rule 751, in case of appeal, requires the justice of the peace to file the transcript and the papers in the court having jurisdiction of the appeal "within six days from the date of filing the appeal bond," and continues, "The clerk shall docket the cause, and the trial shall be de novo, and shall be entitled to precedence in the county court." On the other hand, Rule 753 reads: "If de­fendant fails to enter an appearance upon the docket of the ... county court on ap­pearance day or file answer, before the case is called for trial, the allegations of the complaint may be taken as admitted, and judgment by default may be entered accordingly.”

In our opinion, while the case may be tried in the county court, by consent of the parties, upon its being filed in the county court on appeal during term time, on the other hand, a trial may not be forced or a default judgment taken until appearance day of the term next ensuing after the date the case is so filed in the county court.

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).

(No. 103) Question: “Rule 751, one of the special rules for forcible detainer cases, does not set any appearance day but gives the case precedence on the County Court docket. Does not Rule 571 make appearance day as to such cases the first day of the next term of county court in the event of ap­peal from the justice of the county court?

Answer: Yes. See opinions of this sub­committee, 5 Tex. B.J. 53 (3 rd opinion) and 168 (No. 21) We beg, however, to call to your attention the fact that this rule is reversed by the amendment to Rule 753 which will come into effect at the end of the present year (1943). That amendment reads, "Said cause shall be subject to trial at any time after the expiration of five full days after the day the transcript is filed in the county court, and if defendant shall fail to enter his appearance therein before the case is called for trial, the allegations of the complainant may be taken as admitted, and judgment by default may be entered accordingly."

6 Tex. B.J. 500 (1943) reprinted in 8 Tex. B.J. 37 (1945).

Statement: In forcible entry and detainer proceedings, the defendant appears in the justice court, the case is tried there and brought up on appeal under the following conditions:

1. The pleadings of the plaintiff are written; the defendant pleads orally in the justice court:

(a) Judgment is for the defendant and the plaintiff appeals;

(b) Judgment is for the plaintiff and the defendant gives notice and files a proper bond as required by the rules, the transcript is sent up, the plaintiff appears in court on the 6th day and asks the court to give him a judgment by default, the defendant having made no appearance.

2. The defendant has filed written pleadings in the justice court:

(a) Judgment is for the defendant and the plaintiff appeals;

(b) Judgment is for the plaintiff and the defendant appeals and complies with all the requirements of the rules but files no other pleadings in the county court.

Questions: 1. If the defendant appeals and files a sufficient bond seasonably, has he entered his appearance, although he plead orally in the justice court?

2. If the plaintiff appeals, is the defendant required to file further pleadings provided he has a written answer in the justice court?

3. Is it proper for the court or ethical for the plaintiff's attorney to take a judgment against the defendant, as is ordinarily done in other civil actions when the defendant fails to answer, without any other further notice to the defendant?

Answers: 1. We think it is necessary for the defendant who appeals to enter his appearance before the case is called for trial. His answer in the justice court is not an appearance in the appellate court nor is his filing of the transcript in the appellate court an appearance.

2. If the plaintiff appeals, it is not required that the defendant file further pleadings in the appellate court if he has filed a written answer in the justice court, but it is required that he make an appearance in the appellate court. Such appearance may be in person or by attorney or agent and be noted on the docket and entered in the minutes. Rule 120. An answer shall also constitute an appearance. Rule 121.

3. In answer to that part of your inquiry as to whether it is proper for the court or ethical for the plaintiff's attorney to demand judgment against the defendant without other or further notice to the defendant, we cannot undertake to pass on the question of ethics. We think, however, that Rule 753 is not mandatory or inflexible and that the court has the discretion to determine whether the demand of the movant for judgment should be granted under all the circumstances and that the judgment when so entered will not result in manifest injustice. Since the judgment of the appellate court is final and absolute, we believe that before the court grants the plaintiff's motion, it should make some inquiry as to why the defendant has not appeared. Explanatory of our views, it is well to bear in mind that the essential purpose of forcible entry and detainer proceedings was to provide a speedy method of determining the right of a person to possession of real property without the necessity of resorting to an action upon the title. The rules did not change this purpose. The changes which were made in the rules were designed to make the remedy more speedy and efficacious and the parties must, therefore, always be on the alert until the case is disposed of. The effect of amended Rule 753, effective at the end of December, 1943, was to change the appearance day from "the first day of the next term of the county court" (which the committee thought was required by Rule 751, 8 Tex. B.J. 37) to five full days after the transcript was filed in the county court if it was then in session. Under this amended rule, if the appellate court was not in session when the transcript was filed, a case could be tried when the court was in session after the expiration of five full days after the transcript was filed in the county court. The prime objective of the rules was to secure the just, fair and equitable adjudication of the rights of the litigants under the established principles of substantive law (Rule 1), and this should be constantly borne in mind, and is an admonition that snap judgments should, as far as possible, be avoided.

9 Tex. B.J. 92 (1946).