Arenstein v. Jencks

12 Citing cases

  1. Winship v. Gargiulo

    761 S.W.2d 301 (Tex. 1989)   Cited 1 times
    In Winship v. Gargiulo, 761 S.W.2d 301, 301 (Tex. 1989), the Texas Supreme Court noted the Soldiers' and Sailors' Relief Act created a "distinct right for which relief may be sought," and determined "[t]here is no reason that this federally created procedure should be required to fit within one of our state's existing procedures for vacating a default judgment.

    The statute clearly creates a distinct right for which relief may be sought. See Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945); Arenstein v. Jencks, 179 S.W.2d 831 (Tex.Civ.App. โ€” San Antonio 1944, writ dism'd w.o.j.); 10 C. Wright, A. Miller, M. Kane, Federal Practice and Procedure ยง 2692 (1983). There is no reason that this federally created procedure should be required to fit within one of our state's existing procedures for vacating a default judgment.

  2. National Bedding Co. v. McGee

    263 S.W.2d 948 (Tex. 1954)   Cited 2 times

    Its validity can be challenged only by the equity action of bill of review. Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833. See, also, Rule 320(d) T. R. C. P. and Arenstein v. Jencks, Tex.Civ.App., 179 S.W.2d 831, for an interesting discussion by Justice Murray, much of which is applicable here. The writ of mandamus will issue as prayed by relator.

  3. Hynds v. City of Ada ex rel. Mitchell

    195 Okla. 465 (Okla. 1945)   Cited 11 times
    In Hynds v. City of Ada, 195 Okla. 465, 158 P.2d 907, the plaintiff made no allegation of compliance but proved compliance without objection on the part of the defendant, and this court held that the pleadings would be considered amended to conform to the proof.

    Other courts, including the federal courts, have done so. In re Realty Associates Securities Corp., 53 F. Supp. 1015; Mims Bros. v. James, Inc., (Tex. Civ. App.) 174 S.W.2d 276; McArthur v. Shaffer, 59 Cal.App. 724, 139 P.2d 959; Briner v. Briner, 60 Cal. A.2d 473, 140 P.2d 995; B. B. Sulphur Co., Ltd., v. Kelly, 61 Cal. A.2d 3, 141 P.2d 908; Arenstein v. Jencks (Tex. Civ. App.) 179 S.W.2d 831. The act above referred to is for the exclusive benefit of service men therein included, and they alone can take advantage of it, and then only upon a showing that their interest has been prejudically affected.

  4. Burke v. Osborne

    Case No. 00CA685 (Ohio Ct. App. Mar. 5, 2001)   Cited 1 times

    " Section 520(4), Title 50, U.S.Code. The act is solely for the protection of members of the armed forces and a defendant who is not in military service does not have standing to challenge a default judgment on the grounds that the plaintiff failed to file a military service affidavit. See Arenstein v. Jenks (Tex.Civ.App. 1944), 179 S.W.2d 831. There is nothing in the record to suggest that appellant was in military service at the time that the trial court entered default judgment against him. Indeed, appellant does not even argue in his brief that he was in the military service at that time.

  5. Ruggiero v. Ruggiero

    399 A.2d 187 (Conn. App. Ct. 1978)   Cited 15 times
    In Ruggiero v. Ruggiero, 35 Conn. Sup. 581, 399 A.2d 187 (App. Sess. 1978), the defendant, whose attorney had withdrawn from the case, did not receive the court's notice of his trial date.

    The purpose of that statute is to protect those in the military service against default judgments. A default judgment rendered without a military affidavit is not void but voidable at the instance of a serviceman on a proper showing of prejudice and injury. Snapp v. Scott, 196 Okla. 658, 661; Arenstein v. Jencks, 179 S.W.2d 831, 833 (Tex.Civ.App.). A default judgment may not be challenged on that ground by a person who was not in the military service at the time of its entry.

  6. Tabas v. Robert Dev. Co. et al

    223 Pa. Super. 290 (Pa. Super. Ct. 1972)   Cited 1 times

    However, a lower court decision, which is in accord with the action of the court below here, adequately states the applicable reasoning in cases where an affidavit of nonmilitary service is not properly filed as follows: "While it is true that the Plaintiff did not comply with the above Rule and Act and that this noncompliance would ordinarily be ground for striking off the judgment, 7 Standard Pennsylvania Practice, Chapt. 30, Sections 52 and 173, Coon v. Catten, 2 Del. Co. Reports 101, 3 Luzerne Leg. Reg. Rep. 137 (1879), nevertheless, a study of the cases decided under Section 520 of 50 U.S.C.A. App., clearly shows that only a defendant actually in the military service of the United States may take advantage of the Plaintiff's failure to file the proper non-military affidavit since the Act and Local Rules of Court adopted to supplement it, were designed solely to protect only persons in the military service. See Arenstein v. Jenks, Tex. Civ. App. (1944), 179 S.W.2d 831; Poccia v. Benson, R.I. (1965) 208 A.2d 102; Sanchez v. Sobiesk, 3 Ill. App.2d 478, (1954), 122 N.E.2d 602; Haller v. Walczak, 347 Mich. 292 (1956), 79 N.W.2d 622; Seifert v. Keating, 344 Mich. 456 (1955), 73 N.W.2d 894." Johns Hopkins Hospital v. Croft, 82 York Legal Record 31, 32 (1968).

  7. Mcadams v. Starnes

    262 S.W.2d 735 (Tex. Civ. App. 1953)   Cited 1 times

    Without going into an exhaustive analysis of the case, suffice it to say that it is clear that it holds that an order under article 200a., V.A.C.S., which provides for a general extension of the regular term by the District Judge must have a definite term or expiration date, as it could and usually does involve the disposition of more than one case, as well as other matters, whereas an order drawn under and pursuant to Art. 1923, V.A.C.S., which provides for the extension of the existing term by the presiding judge (italics ours) to conclude the trial of a case then on trial, does not need to set a certain named date but is sufficient if it recites that the term is extended until the conclusion of the then pending trial. Hamilton v. Empire Gas Fuel Co., supra; Brooks v. Morgan, Tex.Civ.App., 121 S.W.2d 398; Arenstein v. Jencks, Tex.Civ.App., 179 S.W.2d 831; Stephenson v. Nichols, Tex.Com.App., 286 S.W. 197; Gulf, C. S. F. R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613. The case of Curl v. Jeppesen, Tex.Civ.App., 253 S.W.2d 73 (no writ history), is in point on this issue, as it has a similarly worded extension, and further holds that the trial of a case includes the hearing of the motion for new trial, and that a case is not concluded until all judicial acts pertaining to the trial and which have been duly invoked are done and recorded.

  8. Curl v. Jeppesen

    253 S.W.2d 73 (Tex. Civ. App. 1952)   Cited 1 times

    xtending the term provided that the term should be extended until the conclusion of the trial of this cause, and did not fix a specific date for the termination of the extended term. Under such circumstances the term would be regarded as extended not only until final judgment was rendered, but until a motion for a new trial was filed and disposed of, if the appellant desired to file such a motion. Gulf C. S. F. R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613; Clayton v. Jobe, Tex.Civ.App., 71 S.W.2d 911; De Moss v. Briggs, 145 Tex. 582, 201 S.W.2d 40; Knight v. State, 99 Tex.Crim. R., 267 S.W. 983; Stephenson v. Nichols, Tex.Com.App., 286 S.W. 197; Cain v. Cain, Tex.Civ.App., 134 S.W.2d 506; Lamb v. Isley, Tex.Civ.App., 114 S.W.2d 673; rehearing denied, Tex.Civ.App., 115 S.W.2d 1036; Hamilton v. Empire Gas Fuel Co., 134 Tex. 377, 110 S.W.2d 561; Blair v. Farmer, Tex.Civ.App., 77 S.W.2d 703; Brooks v. Morgan, Tex.Civ.App., 121 S.W.2d 398; Arenstein v. Jencks, Tex.Civ.App., 179 S.W.2d 831; 11 Tex.Jur. 808, Courts, ยง 73. In Stephenson v. Nichols, Tex.Com.App., 286 S.W. 197, 199, the rule is thus stated:

  9. Joy v. Young

    194 S.W.2d 159 (Tex. Civ. App. 1946)   Cited 2 times

    Not having been acted upon before the judgment became final; no request having been made by the appellant to act upon it before that time; and no request that the term of the court be extended for the purpose of acting upon such motion; it was, after the expiration of thirty days from the date of the judgment, overruled by operation of law. The situation thus presented is practically identical with that presented in Arenstein v. Jencks, Tex. Civ. App. 179 S.W.2d 831, wherein the so-called bill of review was dismissed under similar circumstances; and the decision in that case is controlling here. Nor was it error, under such circumstances, for the trial court to decline to permit appellant to amend his pleadings.

  10. Loomis v. Balch

    181 S.W.2d 849 (Tex. Civ. App. 1944)   Cited 2 times

    It is well settled in this state that a party complaining of a judgment by default, either in a motion for new trial or in an equitable Bill of Review, must not only show that he was prevented from appearing and urging a defense to said cause of action at the time the judgment was entered, by some fraud, accident or mistake unmixed with negligence on his part, but he must also show that he has a just defense to the cause of action. Brown v. St. Mary's Temple, etc., Tex. Civ. App. 127 S.W.2d 531, and authorities there cited; Arenstein v. Jencks et al., Tex. Civ. App. 179 S.W.2d 831. Appellant's motion filed on January 28, 1944, is, we think, inadequate as an equitable Bill of Review.