P. Bosco & Sons Contracting Corporation v. Conley Lott

P. Bosco & Sons Contracting Corporation, defendant below, appeals the grant of a post-answer default judgment in favor of Conley, Lott, Nichols Machinery Company, plaintiff below, contending in three points of error that the trial court erred in denying defendants motion for new trial because: (1) defendant had no notice of trial; (2) defendant established that its failure to appear at trial was not intentional or the result of conscious indifference; that defendant had a meritorious defense; and that the motion was filed at a time when the granting thereof would occasion no delay or otherwise injure plaintiff; and (3) that the account on which plaintiffs action was based showed upon its face that it was paid in full. We conclude that appellants first point of error is dispositive of this case because notice of the trial setting was not given in the manner prescribed by Tex.R.Civ.P. 21a. Accordingly, we reverse and remand.