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Rule 239. Judgment by Default

TEXT

Upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer.

Source: Art. 2154, with minor textual change.

Change: "In term time" added.

Oct. 29, 1940, eff. Sept. 1, 1941.

AMENDMENTS

ADVISORY OPINIONS

Question: Notwithstanding Rule 101 requiring answer at or before ten o'clock a. m. of the Monday next after the expiration of twenty days from the date of service, may a defendant, in case such time of answering falls in vacation, postpone his answer until the following term, without risk of default judgment by reason of such late filing, provided the answer is filed promptly at the opening of the term?

Answer: We think so. Under Rule 239 judgment by default can only be entered in term time. Under Rule 237 appearance day as to a defendant who is required to answer on a day in vacation is the first day of the next term. Under Rule 238 the docket is called for default on such appearance day, at ten o'clock a. m., or as soon thereafter as may be practicable, and under the cited rules default judgment can only be taken where there is no answer on file at the time of the call of such docket, whether such call be at such proper time or at a later time that is not in vacation. Note, however, that the second paragraph of Rule 237 provides for vacation procedure in instances of removal to federal court.

This construction of the rules is aided by the past decisions upon the subject, that, notwithstanding a defendant, even in term time, fails to file his answer by the time for default judgment, such judgment cannot be taken against him, if he files an answer before the default is actually taken. See Moore v. Janes, 6 Tex. 227 (1851); Ellett v. Britton, 6 Tex. 229 (1851); Hurlock v. Reinhardt, 41 Tex. 580 (1874); World Co. v. Dow, 116 Tex. 146 (1926).

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

(No. 124) Question: Vernon’s Ann. Civ. Stat., Article 200a, Sec. 6, provides that it shall be the duty of a district judge to extend the regular terms of his court to dispose of pending litigation. Now if a civil case is on file during the regular term, but service is not completed during the regular term, and the term is extended to dispose of pending litigation and service is completed within the term as so extended, is this case subject to being called for trial during the extended term in view of Rule 237 defining appearance day and Vernon’s Ann. Civ. Stat., Article 1920 providing that no new civil case can be brought to a special term of the district court?

Answer: The case, in our opinion, may be called for trial and disposed of during the extended term.

The question correctly states the pertinent warding of Articles 200a and 1920. The governing intention of Article 200a, as well as that of the Administrative Judicial Districts Act of which it is a part, is to dispose of pending business and the words "pending litigation" as used in the article fairly have that meaning. The Supreme Court used the phrases as though synonymous in Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S. W.2d 561 (1937), and the Court of Civil Appeals, in Morse v. Hoover, 105 S.W.2d 682 (Tex. Civ. App.-Amarillo 1937), assumed that a contest of a plea of privilege, as yet immature because of want of service, was within the statute. So that a case which has been filed during a regular term is in our opinion "pending litigation," although service has not yet been perfected in it.

Looking to the rules, one finds from Rule 101 that in a personal action such as is involved in the question, a defendant is required to answer on the first Monday after the expiration of twenty days from the date of service; from Rule 237 that if this day is "in term time, such day is appearance day as to him" but if it is "in vacation, he shall plead or answer accordingly, and the first day of the next term is appearance day as to him;" from Rule 238 that on appearance day of a particular defendant "and at the hour named in the citation, or as soon thereafter as may be practicable," the case shall be called by the court, etc., or on the request of plaintiff's attorney; and from Rule 239 that "upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed his answer."

While strictly viewed, these rules only force defendant to trial or default, in the instant situation, at the next regular term, liberally interpreted in the light of Rule 1 and of the purpose of the act at hand, they are saying this: the defendant must file answer within the time mentioned in his citation whether the last day falls in vacation or in term time. If it falls in vacation default can only be taken at the next term because the court can only give a judgment in term time. If, when it arrives, there is a term, the defendant may be compelled to submit to trial if he has an answer on file, or otherwise to default.

This liberal interpretation seems to be the correct one to apply.

We think that, the prohibition of "new civil cases" in the statute about special terms is not applicable here because that is a different sort of a term. Yet even new civil cases are there triable in instances of appearance (Browder v. Memphis Indep. Sch. Dist., 107 Tex. 535, 180 S.W. 1077 (1915)) and would be triable by compulsion, as criminal cases are, except for restrictive wording in the statute.

No such restriction appears in the statute for extended terms.

It should be added, though the question does not involve the situation, that the Browder case above cited would be sufficient authority for defendant's forcing a trial or submitting to a trial by appearance or otherwise at a term of court which, as in the instance of the present extended term, allows the disposition of pending litigation.

7 Tex. B.J. 152 (1944) reprinted in 8 Tex. B.J. 46 (1945).