Mechanism 29
New trial after a default judgment
How do you set aside a default judgment in Texas?
A timely motion for new trial establishing three things: that the failure to answer was not intentional or the result of conscious indifference but due to accident or mistake; that the motion sets up a meritorious defence; and that granting it will occasion no delay or otherwise injure the plaintiff. Meet all three and the trial court has little discretion to refuse.
By John P. Henry · Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) · Reviewed 2026-08-02
The authority
[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.Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939)
When it applies
A default taken while the file sat with an insurer, a citation served on a registered agent who had resigned, a defendant who answered the wrong cause number. It applies to a no-answer default and to a post-answer default alike.
How it is proved up
- File within 30 days of the judgment. Craddock is the standard for a timely motion for new trial and does not extend the deadline — if the 30 days has run, the question is Rule 306a, restricted appeal, or bill of review instead.
- Support the first element with an affidavit from the person who actually failed to act, saying what they believed and why. Counsel’s characterisation is not evidence.
- Set up the meritorious defence with facts that would constitute a defence if proved. You do not have to prove it; you do have to plead it with enough substance to be tested.
- Offer to reimburse the plaintiff’s costs of taking the default and to try the case promptly. That is how the third element is usually satisfied.
- Check service first. Craddock is unnecessary where the defendant was never properly served — that judgment is void, and no Craddock showing is required.
What defeats it
- Conscious indifference — a defendant who received the citation, understood it, and did nothing.
- A meritorious defence pleaded as a conclusion rather than as facts.
- Real prejudice to the plaintiff that reimbursement cannot cure.
- The 30-day deadline, which is where most of these die.
Where I have used it
On both sides of it. Setting aside a default requires a defendant to explain itself under oath, which is a useful thing to have before it happens — the entries on service and partial default are written from the same experience.
Questions
What is the Craddock test in Texas?
The three elements for setting aside a default judgment on a motion for new trial: the failure to answer was not intentional or the result of conscious indifference but due to accident or mistake; the motion sets up a meritorious defence; and granting it will occasion no delay or injury to the plaintiff.
How long do you have to set aside a default judgment in Texas?
A motion for new trial must be filed within 30 days after the judgment is signed. After that the remedies are a Rule 306a extension where notice came late, a restricted appeal within six months, or a bill of review within four years.
Does Craddock apply when the defendant was never served?
No. A judgment rendered without valid service is void, and the defendant need not meet the Craddock elements to have it set aside.