PLAINS GROWERS, INC., Relator, v. E. E. JORDAN, Judge et al., Respondents, 519 S.W.2d 633

WALKER, Justice. This is an original proceeding in which Plains Growers, Inc., relator, seeks a writ of mandamus to require the Honorable E. E. Jordan, Judge of the 47th Judicial District Court of Randall County, to set aside a judgment rendered by him against relator and in favor of Ickes-Braun Glasshouses, Inc. The judgment is not void, and the writ of mandamus is accordingly denied. The parties other than Judge Jordan will be referred to as they were designated in the trial court.

On August 3, 1973, plaintiff Ickes-Braun instituted suit against defendant Plains Growers in Cause No. 12,902-A in the 47 th Judicial District Court of Randall County to recover the principal, interest and attorney’s fees alleged to be owing on a promissory note for $16,342.00 executed to plaintiff by defendant on December 21, 1971. Defendant was served with citation on August 23, 1973, and timely filed its original answer on September 14, 1973.

The answer consisted of: (1) a special exception directed at the absence of any allegation in the petition that plaintiff was the owner and holder of the note, and (2) a general denial. The docket of the 47th Judicial District Court was duly called by Judge Jordan in Randall County beginning at 9:00 o’clock a. m. on Monday, January 7, 1974. Counsel for defendant resides in another county. Neither defendant nor anyone representing it was present at the call of the docket.

Counsel for plaintiff was present and requested that Cause No. 12,902-A be set for trial at 10:00 o’clock the same morning, and the setting was ordered by Judge Jordan. The case was called for trial at the time set. The note was introduced into evidence, and judgment was then rendered in plaintiff’s favor for the principal, accrued interest and attorney’s fees. Neither defendant nor its counsel was notified of the setting or the trial.

The postcard notice of the judgment required by Rule 306d was mailed by the clerk to defendant’s counsel on January 17, 1974, and was received by the addressee on the following day. This was after expiration of the 10-day period prescribed in Subdivision 1 of Rule 329b for filing a motion for a new trial. Under the provisions of Subdivision 5 of the same rule, however, the trial court had jurisdiction to set aside the judgment for 30 days after the date of its rendition. Defendant accordingly filed a motion for a new trial on January 23.

Attached to the motion is a copy of an amended answer verified by defendant’s president on January 17, which sets up, among other things, a defense of failure of consideration. After a hearing on February 1 at which evidence was introduced, the motion for new trial was overruled. Motion for leave to file a petition for writ of mandamus was then filed in this Court and the motion was granted. Defendant insists that the judgment, entered as it was without notice to defendant or its counsel of the trial setting and without allowing an adequate opportunity to prepare for trial, was void. We do not agree.

The setting of cases in the district courts of Texas is governed by Rule 330(b), T.R.C.P., which provides: On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of either party, or on the court’s own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation.

Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. The rule specifically requires notice only when a case is set by the court on its own motion. In this respect it is somewhat at variance with Rule 245, which directs the court to provide by rule for placing actions on the trial calendar without request of the parties or upon request of a party and notice to the other parties or in such other manner as the court deems expedient.

The differences in the two rules are doubtless due, at least in part, to the fact that the provisions of Rule 330(

h) were taken, virtually word for word, from the Special Practice Act adopted by the Legislature in 1923. Acts 1923, 38th Leg., ch. 105, p. 215, § 1, later codified as Art. 2092, Vernon’s Ann.Tex.Rev.Civ.Stat. 1925. Those who drafted the original statute must have contemplated that the parties to a case would know the date it was to be tried, but they evidently proceeded on the assumption that a party who had been served with process or answered in a case would keep himself informed of subsequent proceedings therein. See Jordan v. Corley, 42 Tex. 284; Peaslee-Gaulbert Corp. v.

Hughes, Tex.Civ.App., 79 S.W.2d 149 (wr. ref.); Grand United Order of Odd Fellows v. Wright, Tex.Civ.App., 76 S.W.2d 1073 (no writ); Maytag Southwestern Co. v. Thornton, Tex.Civ.App., 20 S.W.2d 383 (wr. dis.); Oldham v. Heatherly, Tex.Civ.App., 17 S.W.2d 113 (no writ). We do not attempt to determine here the validity or effect of that assumption today. Be all that as it may, the provision in Rule 330(

b) for setting cases on the first Monday in each calendar month is directory and not mandatory. It is also clear that formal notice of the setting is not required when a case is set for trial by request at a regular call of the docket, by agreement of the parties, or on motion of either party. That is the reason many district courts have adopted a local rule requiring notice of a setting. See Phillips v. Hopwood, Tex.Civ.App., 329 S.W.2d 452 (wr. ref. n. r. e.); Jackson v. Napier, Tex.Civ.App., 307 S.W.2d 833 (no writ). It also appears that a local custom of giving notice may have developed in some counties.

See Peaslee-Gaulbert Corp. v. Hughes, Tex.Civ.App., 79 S.W.2d 149 (wr. ref.). On August 1, 1970, the 47th Judicial District Court promulgated local rules as authorized by Rule 817, T.R.C.P., but there is no provision requiring notice of a trial setting. The local rules do provide that the docket call will be on the first day of each term in each county, except when that date is a legal holiday, in which event the docket call will be on the following day. The terms of the court, which are prescribed by Subdivision 47 of

Article 199, V.A.C.S., begin in Randall County on the first Monday in January, on the sixteenth Monday after the first Monday in January, and on the eighth Monday after the first Monday in August. The docket call on January 7, 1974, which was the first Monday in January, was thus held at the time prescribed by the local rules. There is no local or general rule requiring notice to the parties of a setting made at the regular call of the docket, and the case was tried on its merits at the time it was set for trial.

The early setting and trial without further notice to defendant or its counsel does not violate any statute or rule, and our decision in Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, has no application. Although the setting and trial without notice may have constituted an abuse of discretion under the circumstances, a question we do not attempt to decide here, this does not render the judgment void. The trial court had jurisdiction of the subject matter, and the judgment is not void even though it may have been erroneous.

If defendant has or had any remedy other than the late motion for new trial, it was by writ of error to the Court of Civil Appeals or by petition for bill of review in the trial court. A petition for a bill of review is ordinarily based on some wrongful act of the adverse party or his attorney. The failure of the clerk to mail the postcard notice “immediately” as required by Rule 306d does not impair the finality of the judgment or render it void, but we held in Petro-Chemical Transport v.

Carroll, Tex.Sup., 514 S.W.2d 240, that such failure on the part of the clerk may constitute the basis of a bill of review in an otherwise proper case. The petition for writ of mandamus is denied. Dissenting opinion by DANIEL, J., in which McGEE, DENTON and SAM D. JOHNSON, JJ., join. . Texas Rules of Civil Procedure. . Rules 245, 246 and 247 govern the setting and trial of cases in district courts with noncontinuous terms and in county courts. See Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428. All district courts in Texas now have continuous terms and are governed by Rule 330. See

Article 1919, V.A.C.S. Rules 245, 246 and 247 continue to apply in county courts.