Summary
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.
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No. C-7893.
November 23, 1988. Rehearing Denied January 4, 1989.
Appeal from the Waco Court of Appeals, Tenth Supreme Judicial District, Hall, J.
David M. Ward, Wilson, Grosenheider Burns, Austin, for petitioner.
Russell H. McMains and Kimberley Hall Seger, McMains Constant, Corpus Christi, for respondent.
Pursuant to the Soldiers' and Sailors' Civil Relief Act, Paul Winship is seeking to set aside a default judgment taken in a personal injury case. See 50 U.S.C.App. § 520 (1982). The trial court ruled that it was without jurisdiction to consider the motion, and that if it did have jurisdiction, Winship had failed to show that his military service prejudiced his ability to make a defense to the claim asserted against him. The court of appeals affirmed. 754 S.W.2d 360. We deny Winship's application for writ of error.
In denying the writ, however, we note our disapproval of the court of appeals' characterization of this motion. The court of appeals attempted to classify this action as either a motion for new trial or a bill of review. It is neither. 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. — San Antonio 1944, writ dism'd w.o.j.); 10 C. Wright, A. Miller, M. Kane, Federal Practice and Procedure § 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. The application for writ of error is denied.