Oliver WARD, Petitioner, v. David NAVA, Respondent, 488 S.W.2d 736

PHILLIPS, Justice. David Nava secured a default judgment in the amount of $25,000 against Oliver Ward on November 22, 1971. The parties will be referred to in this opinion by their last names. On December 2, 1971, Ward, through his attorneys, filed his motion to Set Aside Default Judgment And For New Trial. An amended motion was filed on December 13, 1971, elaborating somewhat on the matters set out in the original motion.

An affidavit executed by Ward, attempting to set up a meritorious defense to the cause of action asserted by Nava and making excuses for not filing a timely answer, was attached to the amended motion. The motion was overruled by the trial court and Ward appealed. The Court of Civil Appeals affirmed. 483 S.W.2d 510. Ward presents three grounds of error: First, the Court of Civil Appeals erred in holding that circumstantial evidence to corroborate the impeachment of an officer’s return may not come from the defendant himself.

Second, the judgment should have been set aside as Ward had a meritorious defense, and failure to answer was not the result of conscious indifference but was due to accident or mistake. Third, the Court of Civil Appeals erred in holding the supporting affidavit accompanying the motion for new trial was factually insufficient. We overrule the first point of error. The only evidence presented to support the contention made by Ward that he was not served was contained in the affidavit filed by him in connection with his motion.

The record does not reflect that an evidentiary hearing was held for the presentation of testimony by witnesses, and we must look solely to the affidavit attached to the amended motion to either sustain or overrule the action of the trial court. Ward stated in this affidavit that he was not served in person; that on Friday, November 19, 1971, someone, whose name he did not remember, called and asked about the lawsuit. Ward did not elaborate as to the identity of the party calling nor did he state for what reason the party calling might have an interest in the case.

As a result of the call, Ward began looking for the papers that were supposed to have been served on him. He found the petition in his house as a result of his search on Sunday, November 21, and presumed that it had originally been left in his mailbox. He forgot to take the papers the next day, but delivered them to his insurance agent the following day, November 23, 1971. By this time the default judgment had been entered.

The actions of Ward in searching for the papers and in promptly taking the papers to the insurance agent on their discovery constitute some corroborating evidence of Ward’s contention that he had not been served. In a situation of this nature, the question of lack of service is purely a question of fact which must be determined by the trier of the facts, and the testimony of the moving party alone, without corroborating facts or circumstances, is not sufficient to overcome the presumption that the officer’s return on the citation was correct.

As in any other fact issue, the burden was on Ward to establish his case by a preponderance of the evidence. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). The trial judge presumably found in support of his order that the facts set out in the affidavit did not establish lack of service by a preponderance of the evidence. We cannot disturb this finding. The second and third points of error will be discussed together. Ward, in his affidavit, states that after the telephone call on November 19, he instituted a search at his house for the papers in question. As a result of the search, he found the papers.

He was unaware of having seen them prior to this time. He did not intend to ignore the citation nor neglect to file an answer. If he had been aware that he had been served, he would have turned the papers over to the insurance company, and it was only through inadvertence and mistake that they were not turned over to the insurance company so that an answer could be filed. When he discovered the papers, he did take them to his insurance agent within one day after their discovery.

The record reflects that the papers were found the day before the entry of the default judgment and were turned over to the insurance agent, who immediately contacted the attorney the day after the entry of the default judgment, and a motion for new trial was filed within the time limit for filing such motion. We believe the above facts meet the “excuse” requirements established by Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), and reaffirmed in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966).

If Ward “sets up” a meritorious defense in his motion for new trial and the supporting affidavit, he would then meet the rule established by Craddock and Ivy for granting a motion for new trial to set aside the default judgment. In Ivy v.

Carrell, supra, this Court said: “The motion must allege facts which in law would constitute a defense to Ríe cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” The burden in this situation is much less onerous than the burden that would have been placed on him had he allowed the time for new trial to expire and sought relief in a bill of review proceeding.

Ward’s motion states that the accident was caused “solely by the negligence of the Plaintiff when, in a drunken condition, he walked in front of Defendant’s car in the middle of the block on a dark night.” In his supporting affidavit, Ward avers that about 10:00 o’clock, in the evening of January 29, 1971, David Nava, who had been drinking heavily, ran across the street in the middle of the block, in front of Ward’s car and that he, Ward, was unable to prevent the accident although he tried to do so. Admittedly, the affidavit does not detail all of the facts relating to the occurrence of January 29.

We hold, however, that there are sufficient facts in the affidavit to raise issues of negligence on the part of Nava, which could have been proximate causes of his injury. As there is no evidence that the granting of the motion for new trial in this cause would have created any delay in bringing this case to trial, or in any manner prejudiced the plaintiff’s cause of action, the second and third points of error are sustained. Ward has expressed willingness to proceed to trial any time this cause is properly set.

Ward has also stated in his motion that, if granted a new trial, he is willing to pay the expenses and costs of the hearing of this motion in the setting aside of such default judgment. These costs can be assessed against him by the trial court in a final judgment to be entered herein. The judgments of the trial court and the Court of Civil Appeals are reversed, the default judgment heretofore granted against Ward and in favor of Nava is set aside, and this cause is remanded to the trial court to be set down for a trial on the merits. All costs of appeal are assessed against the respondent Nava.

Dissenting opinion by REAVLEY, J., in which WALKER and POPE, JJ., join.