Lixing Xu v. Wang Yan Feng--Appeal from County Court at Law No 1 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-94-217-CV

LIXING XU,

Appellant

v.

WANG YAN FENG,

Appellee

From the County Court at Law

Brazos County, Texas

Trial Court # 33,293ACCL-1

O P I N I O N

Appellant Lixing Xu (wife) appeals from a default judgment granting Appellee Wang Yan Feng (husband) a divorce.

The trial court granted Appellee a divorce by default. Appellant appeals on four points of error. Appellee has not filed a brief.

Point one: The trial court abused its discretion in overruling Appellant's motion for a new trial because Appellant satisfied all of the requirements for obtaining a new trial following the entry of a default judgment.

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 out 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. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Appellant, by her uncontroverted motion for a new trial and supporting exhibits, satisfied the three requirements of Craddock and was entitled to a new trial. Point one is sustained.

Point three: The trial court erred in refusing Appellant's motion for a new trial because there was no record made of the testimony at the hearing on the default judgment and Appellant is unable to obtain a statement of facts.

Appellant is entitled to a new trial because no record of the trial was made by the official court reporter and the appellant is unable, through no fault of her own, to obtain a statement of facts. Rogers v. Rogers, 561 S.W.2d 172 (Tex. 1978); Victory v. Hamilton, 91 S.W.2d 697 (Tex.1936). Point three is sustained.

The sustaining of points one or three entitles Appellant to a reversal of the default judgment and a remand for another trial. Points two and four thus become moot.

The judgment is reversed and the cause remanded to the trial court for a new trial.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed June 5, 1996

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