Lloyds Alliance v. Oliver

HALE, Justice. This is an appeal from an order of a District Court denying the application of appellant for the issuance of a writ of mandamus commanding a Justice of the Peace to reinstate a vacated judgment theretofore rendered by default in favor of appellant against one A. C. Weibusch and to issue execution thereon. Weibusch was not a party to the mandamus proceeding. Although the court below did not file any findings of fact and conclusions of law, we think the evidence adduced upon the hearing of the application for mandamus was sufficient to sustain findings to the effect that on December 13, 1948 the Justice of the Peace inadvertently entered judgment by default against Weibusch as the result of a clerical error in failing to make his customary record when an answer is filed; that on December 29, after the term of his court had expired, the Justice of the Peace discovered that Weibusch had not been in default and thereupon he entered an order vacating the prior judgment; that appellant then moved the Justice of the Peace to set aside the vacating order, to reinstate the default judgment and to issue execution thereon; and that the latter motion, after some character of a hearing, was overruled. Neither the citation that was served upon Weibusch nor the default judgment that was entered against him in the Justice Court or the order overruling appellant’s motion to reinstate the same was introduced in evidence upon the hearing of the application for mandamus, notwithstanding such instruments or properly certified copies thereof would have been the best evidence as to the recitals and contents of each. In our opinion the affirmative duty rested upon appellant to bring before the court all necessary parties to the mandamus proceeding and to make a clear showing by the introduction of competent evidence of its right to the relief sought. Under the circumstances shown by this record we think Weibusch was a necessary party to such proceeding and in his absence, the court below could not properly grant the relief there sought, regardless of any other consideration. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, pt. 1, 48 A.L.R. 355. ' Accordingly, the judgment appealed from is affirmed.