The Trial Court Abuses Its Discretion in Denying Motions for New Trial if the Defendant’s Affidavit Alleges Slight Evidence of Extenuating Circumstances
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Ward held that a petitioner successfully shows that his failure to answer, resulting in a default judgment, was excused because it was not intentional or due to conscious indifference. The author highlights the two major problems in Ward: (1) what must an affidavit contain to negate conscious indifference? And (2) what discretion is allowed the trial court to rule on a motion to set aside a default judgment and for a new trial? The author reasons that the ultimate effect of Ward is to reaffirm already existing requirements for setting aside a default judgment and granting a new trial set out in Craddock v. Sunshine Bus. Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Further, the author suggests that Ward indicates that the excuse necessary to rebut conscious indifference is slight, but without such an excuse courts will not grant a new trial.