¶1concurring.
¶2I concur in the opinion of Justice O’QUINN that the judgment of the district court be reversed.
¶3A movant in a bill of review proceeding seeks to invoke the equitable powers of the Court to set aside a previous judgment and enter a new judgment. Dosamantes v. Dosamantes, 500 S.W.2d 233, 238 (Tex.Civ.App.1973, writ dism’d). He must first demonstrate that he has a meritorious defense to the original suit before a court of equity will set aside the default judgment. Overton v. Blum, 50 Tex. 417, 425 (1878). If the movant has no meritorious defense to the suit on the merits, setting aside the judgment would be a vain act and a trespass on the court’s time not countenanced by equity. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).
¶4The movant is required to do more than specifically plead a meritorious defense. He has the burden to produce some evidence of the meritorious defense to the original cause of action. Overton v. Blum, supra; Humphrey v. Harrell, 29 S.W.2d 963 (Tex.Comm’n App.1930, judgment adopted); Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974); Hollis v. Seibold, 23 S.W.2d 811 (Tex.Civ.App.1929, writ dism’d); Crosby v. Di Palma, 141 S.W. 321, 325 (Tex.Civ.App.1911, writ ref’d). If he fails to produce some evidence of a meritorious defense, the court should deny the bill of review.
¶5*594The movant has the additional burdens of production and persuasion of the other requirements of the bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). If the movant satisfies the initial burden to produce evidence, then the parties are relegated to their original posture “ . . . with the burden of proof resting upon the plaintiff to make his case, leaving the defendant the right . to rely merely upon the weakness of his adversary’s case.” Crosby v. Di Palma, supra.
¶6If a jury case, the court submits special issues inquiring whether the default judgment came about through the fraud, accident, or wrongful act of another unmixed with any negligence of movant. The special issues submitting the merits of the original case are conditioned upon favorable answers to the special issues submitting the elements of the bill of review. Of course, if the movant asserted affirmative defenses, he has the usual burdens of production of evidence and persuasion on those issues.
¶7dissenting.
¶8I respectfully dissent.
¶9During this bill of review proceeding, the case was fully tried and the record fully developed. This is conceded by appellants. It is quite apparent from the court’s judgment and from a review of the testimony, that the court was of the opinion that appellants had not proved a meritorious defense. In my judgment, the record supports the finding.
¶10I note at the outset that the equitable bill of review is a new proceeding brought by the loser in the original proceeding to vacate the original judgment. The bill of review proceeding is neither a continuation of the original action nor is it a motion for new trial. The plaintiff in a bill of review proceeding must allege and prove the elements of his cause of action. Moreover, once a default judgment has become final, the judgment becomes a vested right. A court of equity will not vacate the judgment for the purpose of giving the defeated party a second opportunity to be heard on the merits of the case. Finality must be accorded judgments; therefore, the grounds upon which equitable relief may be granted are narrowly construed.
¶11In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), the Supreme Court stated the general rules for the granting of a bill of review. These are that before a litigant can successfully set aside a final judgment, he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.
¶12The court held that not only must a meritorious defense be pleaded but that the moving party must go further and prove such a defense. Thus the plaintiff in a bill of review must meet and satisfy a two-pronged test. See also McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).
¶13The initial inquiry is whether the pleadings state a meritorious defense worthy of submission to the trier of facts. Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App.1975, writ ref’d n. r. e.). Thus, if the motion to vacate the judgment discloses a meritorious defense, the Hage-dorn test then requires that the movant prove a meritorious defense. Thus we come to the quantum of proof imposed at law in order to set aside the judgment by bill of review.
¶14At this point I note that there is a well-settled distinction between the pleadings and proof necessary to grant a new trial on a motion therefor after a default judgment and a motion to set aside a judgment by way of bill of review. See Smith v. Ferrell, 44 S.W.2d 962 (Tex.1932). To prevail in the former, it is necessary only that the movant allege facts which would constitute a meritorious defense to the other party’s cause of action and that it be supported by evidence proving prima facie that movant has such a defense. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); *595Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Wallace v. Snyder National Bank, supra.In Ivy, the Court said;
“The rule of Craddockdoes not require proof of a meritorious defense in the accepted sense to entitle one to a new trial after default; the motion should be granted if it ‘sets up a meritorious defense.’ In this respect the burden a defaulting defendant must assume on motion for new trial is much less onerous than the burden he must assume in a bill of review proceeding filed after expiration of the time for filing a motion for new trial. In the latter situation, except in unusual circumstances as reflected in Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964), the issues of negligence or fault on the part of the defendant, fraud, accident or wrongful act on the part of the plaintiff, and meritorious defense are tried together in a single full-blown trial in which ‘every issue must be disposed of, and relief denied or granted.’ ”
¶15Further, as stated by the Supreme Court in Ward v. Nava, 488 S.W.2d 736 (Tex. 1972):
¶16“In Ivy v. Carrell, supra, this Court said:
“ ‘The motion must allege facts which in law would constitute a defense to the' cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.’ ” (Emphasis added)
¶17Thus if “the burden a defaulting defendant must assume on a motion for new trial is much less onerous than the burden he must assume in a bill of review proceeding” and the burden one must assume in the former situation is to prove “prima facie that the defendant has such meritorious defense,” how can it be said that mere allegations of a meritorious defense in the movant’s petition or the introduction of only some evidence satisfies the proof requirement set forth in Hagedorn?
¶18In Hagedornthe Supreme Court held that the burden to establish a meritorious defense lies with the movant. (Indeed, in this respect McDonald refers to this movant as “the plaintiff” in an entirely new proceeding. 4 McDonald, Texas Civil Practice, § 18.27.2 (1971) (11) Meritorious Claim or Defense). Burden of proof and burden of persuasion are synonymous. Huckaby v. Huckaby, 436 S.W.2d 601 (Tex.Civ.App. 1968,.,writ ref’d n. r. e.). To prove is “to make certain, to establish, to fix or settle unalterably.” Texas & New Orleans Ry. Co. v. Flowers, 336 S.W.2d 907, 914 (Tex.Civ.App.1960, no writ). The general rule in civil cases is that the party having the burden of proof must establish the case by a preponderance of the evidence. State v. Turner, 556 S.W.2d 563 (Tex.1977). So, in a civil case, the evidence to support a claim must preponderate. If it does not, the evidence fails to prove the claim in any degree.
¶19In summary, the burden of proof or risk of nonpersuasion is on the litigant who seeks to alter the status quo. This burden is placed upon the movant by the pleadings and the substantive law. Moreover, the movant has the initial duty of producing some evidence in order to satisfy the judge that the judgment should be reopened and that a retrial on the merits should be had.
¶20Thus where the movant (plaintiff) satisfies the court that he has a prima facie case of proving the negative — no liability to the prior plaintiff — the burden of going forward shifts to the defendant (prior plaintiff) in the bill of review proceeding.
¶21The obvious result of the majority and concurring opinions is to give appellant two bites at the papaya when under the pleading and proof such is unwarranted. It is *596well settled that in a bill of review proceeding all the issues are tried together in a single full-blown trial in which “every issue must be disposed of, and relief denied or granted.” Texas Employers’ Ins. Ass’n. v. Arnold, 126 Tex. 466, 88 S.W.2d 473 (1935).
¶22For these reasons, I would hold that the judgment of the trial court was correct so that it should be affirmed.
¶23. See generally Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964).