Summary
holding evidence must show defendant was informed of nature of the process and that service was being attempted, and recognizing that active avoidance of service indicates that defendant recognized service of process was being attempted
Summary of this case from Red Hot Enters. LLC v. Yellow Book Sales & Distribution Co.Opinion
No. B — 5293.
July 16, 1975.
Appeal from the 191st District Court, Dallas County, Spencer Carver, J.
Bagby, McGahey, Ross DeVore, Phillip C. McGahey and Stewart DeVore, Jr., Arlington, for petitioner.
Bean, Francis, Ford, Francis Wills, Judson Francis, Jr., Dallas, Joe W. Walsh Associates, Lee Arnett, Brownsville, for respondent.
This is an appeal from a Bill of Review judgment setting aside a default judgment against the defendant and rendering a judgment that plaintiff take nothing. The court of civil appeals affirmed. 521 S.W.2d 133. In denying the application for writ of error, no reversible error, we specifically approve the holding of the court of civil appeals that proof of defendant not having been served with citation obviates the necessity of pleading and proving the second Hagedorn requirement: that the defendant was `prevented from making (his meritorious defense) by fraud, accident, or wrongful act of the opposite party . . . .' See Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 243 — 244 (Tex. 1974) and Hanks v. Rosser, 378 S.W.2d 31 (Tex. 1964).
Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).