256 S.W. 254 | Tex. | 1923
Defendant in error brought an action of trespass to try the title to 200 acres of land in Hardin County against plaintiff in error R.A. Brown and others.
Plaintiff in error R.A. Brown, among other pleadings, filed a cross-action, averring that defendant in error deraigned title through a judgment for the 200 acres of land in her favor against him, which was rendered in 1910 by the District Court of Hardin County; that said judgment recited facts which gave the court jurisdiction to render the judgment, but that in fact no citation was served on him in the cause wherein the judgment was rendered, and that he did not appear therein nor authorize any one to appear in his behalf, and that he had no knowledge of the judgment until advised thereof by his attorney subsequent to the institution of this suit. Plaintiff *366
in error R.A. Brown prayed that the former judgment be set aside as void for the want of jurisdiction in the court to render it, and for general relief, etc. No attempt was made to allege a defence by Brown to the former suit. The District Court sustained a demurrer to the cross-action, seeking to vacate the former judgment for defendant in error, because of Brown's failure to aver a meritorious defence to the first suit, and, on his refusal to cure the defect, dismissed the cross-action. The trial in the District Court resulted in a judgment for defendant in error, which was affirmed on appeal.
The writ of error was granted because of the doubt expressed in Kern Barber Supply Co., v. Freeze,
The judgment which Brown sought to vacate recited facts which sustained the court's jurisdiction. It could not therefore be collaterally attacked with success in the courts of this state. Levy v. Roper,
In the early decision of Witt v. Kaufman, 25 Texas Supp., 386, in a proceeding to enjoin the execution of a judgment of a justice of the peace, which was declared void as against one over whose person the court had not acquired jurisdiction, it was said: "But the court having obtained cognizance of the case for one purpose, would retain it for the further purpose of doing full and complete justice between the parties, and would give judgment for the plaintiff upon the cause of action on which the judgment of the justice was rendered, if, upon the merits, the plaintiff was entitled to judgment. Such is the practice as settled by the decisions of this court."
The rule is shown to be founded on common sense and reason by the opinion of Chief Justice Roberts in House v. Collins,
In the case of Piggett v. Addicks,
Speaking of injunctive relief to which one is entitled from a judgment without notice, in Hamblin v. Knight,
While disposed to question the correctness of this doctrine, Mr. Pomeroy recognizes that the prevailing view is that a good defence on the merits must be shown to warrant relief against a judgment, not void on its face, where there is a want of jurisdiction arising from lack of service of citation. 5 Pomeroy's Equity Jurisprudence, sec. 2088, p. 4703, where the authorities are collated.
The trial court and the Court of Civil Appeals were correct in holding that the averments of Brown's cross-action failed to show that he was entitled to vacate the judgment which he attacked. Finding no error in the judgments of the District Court and of the Court of Civil Appeals, they are affirmed.
Affirmed.