Cayce v. Powell

| Tex. | Jul 1, 1858

Wheeler, J.

The appellant had been duly served with process in person, and was represented in Court by her attorney, who filed her answer ; there is no averment or pretence of any want of diligence or fidelity to her interests on his part, or of any fraud or unfairness practised in the procurement or rendition of the judgment. It is not denied that the consideration of the note was necessary supplies furnished the appellant and her family. But the complaint is, that there was no bill of particulars furnished, and that she had not notice or knowledge of the particular charges, or supplies alleged to have been furnished, and that she was ignorant of the rendition of the judgment, until a few weeks before the filing of her petition to have it perpetually enjoined. Can she plead ignorance of the judgment, as a ground of equitable relief, when she was thus represented in Court by her attorney, who was cognizant of, and consenting to, its rendition, and when it is not pretended that he did not, in good faith, represent what he deemed to be her true interest, and there is no charge of any actual fraud or intentional wrong practised by the other parties to the judgment ? We think not. The authority conferred upon a married woman, to litigate in her own right, implies the capacity on her part, to conduct the litigation as shall be most conducive to her own advantage. The law has conferred on her the right to litigate; and the right implies the capability. Otherwise the law should have provided a guardian, or attorney ad litem to conduct her litigation for her. It is a consequence of her capacity to sue and be sued in her own right, that she must be held to the use of the ordinary diligence of other suitors, where she is not specially exempted by law from the use of such diligence. Otherwise, there would be no conclusiveness in judgments to which married women are parties.

Having been made a party to the suit, and had notice, by the personal service of process, she was bound to inform herself of the result of the suit, and cannot make her want of information a ground of enjoining the judgment. It is said, indeed, that the rendition of the judgment, without proof that it was upon a cause of action for which her estate was properly chargeable, was a fraud upon her rights; that it was a legal, as distinguished from a moral fraud. But it is not legal and technical, but actual, positive fraud, in fact, which will authorize the annulling of a judgment, or will afford an excuse, under the statute, for not having applied to the Court for relief within the time prescribed. (Hart. Dig. Art. 1599.) The plaintiff has not made out a case either by averment or proof, which will entitle her to the relief sought. There is therefore no error in the judgment, and it is affirmed.

Judgment affirmed.