United States Currency in the Amount of at Least $2675.00 (Joseph Boutte, Jr.) v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-95-043-CV

UNITED STATES CURRENCY IN THE AMOUNT OF AT

LEAST $2,675.00 (JOSEPH BOUTTE, JR.),

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 94-11-14-738-CV

O P I N I O N

This is a civil case in which a no-answer default judgment was taken by The State of Texas pursuant to Chapter 59 of the Texas Code of Criminal Procedure (Vernon 1981 & Supp. 1989) against Joseph Boutte, Jr. for the sum of at least $2,675. Boutte filed a Motion for New Trial alleging that the failure to file an answer was not intentional or the result of conscious indifference and a sworn denial alleging that the money in question was not obtained by illegal means or intended for illegal use. After a hearing, the court denied the motion for a new trial. We will affirm.

The State stipulated that Boutte's failure to file an answer was or intentional nor the result of conscious indifference, but contends that Boutte did not set up a meritorious defense. In the leading case of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), the rule applicable here is stated as follows:

"* * * A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff * * *"

The State, having stipulated to the first prong of Craddock, we will consider whether Boutte "set up" a meritorious defense. At the hearing on the motion for new trial, Boutte offered no evidence through testimony or otherwise concerning a meritorious defense and relied solely on his sworn denial that the money in question was not obtained by illegal means or intended for illegal use. He relies on Republic Bankers Life Insurance Co. v. Dixon, 469 S.W.2d 646 (Tex. Civ. App. Tyler 1971, no writ). In that case, however, Republic Bankers Life Insurance Co. presented evidence that Dixon's claim for hospitalization benefits for cataract surgery were barred because the insurance policy excluded payments for pre-existing conditions. Here, since Boutte offered no testimony or exhibits at the hearing, we find that his assertion in the sworn denial is insufficient to "set up" a meritorious defense. In Ivy v. Carrell, 407 S.W.2d 212 (Tex. 1966), the court confirmed the Craddock holding and further gave us guidance concerning "setting up a meritorious" defense, when it stated:

"* * * The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense * * *"

See also Poindexter v. State, 802 S.W.2d 386 (Tex. Civ. App. Corpus Christi 1990, writ denied), and Pitts v. State, 736 S.W.2d 191 (Tex. Civ. App. Waco 1987, n.w.h.).

Because Boutte failed to present any evidence at the hearing "setting up" a meritorious defense, we affirm the judgment of the court denying his Motion for New Trial.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 23, 1995

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