W. P. FRENCH, Individually, and d/b/a W. P. French Painting and Contracting, Petitioner, v. Homer BROWN, Respondent, 424 S.W.2d 893

STEAKLEY, Justice. 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 Petitioner’s 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 Petitioner’s suit and that neither Respondent nor his attorney of record had notice of the filing of Petitioner’s 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 Respondent’s 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. Rule 166-A of the Texas Rules of Civil Procedure provides that a motion for

summary judgment shall be served at least ten days before the time specified for the hearing. The purport of the stipulation of the parties in this case is that such did not occur. The problem, then, is twofold, namely, whether the failure of the procedural requirement of service of the

summary judgment motion deprived the trial court of jurisdiction to grant the motion, for

summary judgment and hence rendered its judgment void, as held by the court of civil appeals; and, if not, whether the allegations of Respondent’s petition for bill of review attacking the judgment were sufficient to entitle Respondent to the relief sought under the established requirements for relief by bill of review. We hold that the judgment was not void and that there was not sufficient cause for granting the bill of review. Petitioner’s suit invoked the jurisdiction of the court, and Respondent duly answered after being served with citation.

Thereupon, the trial court had jurisdiction of the subject matter and of the parties; indeed, Respondent does not claim otherwise. The procedural faihtre with respect to service of the motion for

summary judgment did not have the effect of ousting or terminating the jurisdiction of the trial court; at the most, such rendered the

summary judgment erroneous, corrective either by the trial court in response to Respondent’s timely filed motion for new trial, or, upon its overruling, by the appellate courts on appeal. It was held by this court in Clayton v.

Hurt, 88 Tex. 595, 32 S.W. 876, l. c. 877 (1895) : “Where a court of general jurisdiction, in the exercise of its ordinary judicial functions, renders a judgment in a cause in which it has jurisdiction over the person of the defendant and the subject-matter of the controversy, such judgment is never void, no matter how erroneous it may appear, from the face of the record or otherwise, to be. * * *» More recently we have said that a judgment is not void, although it may be erroneous, if the court had jurisdiction of the parties and the subject matter and the power to render the particular judgment. Freeman v.

Freeman, 160 Tex. 148, 327 S.W.2d 428; Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953); Heard v. State, 146 Tex. 139, 204 S.W.2d 344 (1947). A bill of review is an equitable proceeding designed to prevent manifest injustice. The relief afforded thereby must be for sufficient cause under Rule 329b (5) of the Texas Rules of Civil Procedure. In Hanks v.

Rosser, 378 S.W.2d 31, l. c. 34 (Tex.Sup.1964), we restated the rule “that before a litigant can successfully set aside a final judgment, he must allege and prove, within the time allowed, (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on his own part.” In Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280, l. c. 281, this court said: “* * * [A]n appeal from the judgment was available to her.

Having neglected to avail herself of this legal remedy, she is not entitled to resort to a court of equity for relief against the judgment.” See also the statement of the rule with supporting cases in 34 Tex.Jur.2d Judgments, § 198, p. 36 and § 230, p. 101, and 4 McDonald, Texas Civil Practice, § 18:27. So there is insufficient cause here for relief by bill of review. Respondent permitted the judgment to become final by his failure to invoke the right of appeal.

No reason is advanced in his petition for bill of review for the fact that he did not seek correction of the asserted error of the trial court by the appeal remedy. There is no allegation that he was prevented from doing so by fraud, accident or wrongful act of petitioner. There was no showing of diligence. In an analogous context, we said in McEwen v.

Harrison, 162 Tex. 125, 345 S.W.2d 706, l. c. 710 (1961), that a defendant who negligently suffers a default judgment to be rendered against him by a court having the jurisdictional power to render it, or negligently permits it to become final, should not be heard to say that the judgment is void. Here, as we have held, the trial court had jurisdictional power to render the

summary judgment. Respondent obviously had prompt notice of this action since his motion for a new trial was filed within ten days. He has not made the requisite showing for relief by bill of review. In view of the foregoing, we do not reach the question of whether Respondent alleged and proved a meritorious defense to the cause of action supporting the judgment of the trial court. The points of error not considered by the court of civil appeals were directed to this problem. The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.