The Supreme Court of Texas reversed the Tyler court in Sells v. Drott. Drott had sued Sells for specific performance. Drott wanted Sells to follow through on her contract to deed some land over to him. An answer was filed for Sells. But, at a hearing in the case, Sells’ daughter indicated that she might have signed the answer for her mother. The daughter took the Fifth when the trial court let her know that might amount to forgery or practicing law without a license. The trial court then struck the answer and entered a default judgment against Sells. The Tyler court affirmed. The Supreme Court of Texas reverses and remands, holding that:
In this case, the trial court put the cart before the horse, considering evidence before proper notice had been given. Assuming that Drott produced evidence that Sells had filed defective answers, in that they were signed on her behalf by her “next friend” daughter, Sells was entitled to an opportunity to prove that such defects were not true or not fatal or to argue that she had a right to cure the defects, if possible. The trial court erred in granting a default judgment against her without the requisite notice.
