Plaintiff sued to recover $5600 allegedly due under defendant's guarantee of a hospital debt incurred by one of his employee's. Defendant did not appear or answer, so default judgment was entered for the amount claimed, plus attorney's fees and costs.
Defendant began a bill of review, as he was served too late.
Page 83, Bottom (not in casebook)
Appellee argued that despite the allegation of no service and no notice of judgment, the meritorious-defense requirement prevented relief and that even though the bill of review was the only avenue of relief, the State could constitutionally insist on the showing of a meritorious defense.
The Texas courts nevertheless held, as appellee urged them to do, that to have the judgment set aside, appellant was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgment entered without notice.
Does a lack of service enable a judgment to be set aside without a showing of a meritorious defense?
Failure to give notice violates "the most rudimentary demands of due process of law."
If notice had been given, defendant could have taken other options such as negotiating a settlement or paying the debt himself instead of it his property being sold by others without notice.
Yes, due process demands that a judgment be set aside for a lack of service.
Reversed.
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