*1 person the defendant. risdiction over is entitled to WALDROP. contentions DARNELL v. Neither of these appellants’ shown, sustained. As heretofore suit is an No. 1048. only, try title in Appeals upon Court of Civil of Texas. Eastland. attack made and therefore no direct the introduced, the attack is hut Jan. collateral one. The contentions here were Rehearing Ap Denied Feb. Court of Civil before Dallas peals Oil Co. in the recent ease of Simms Judge Butcher, Jones, S.W.(2d) in “However, overruling them, said: every judgment not is in fact void can impeached by at means of a collateral infirmity tack. The rule is judgment, respect of the that renders void, appear must on the face of rec ord, aliunde, except and cannot be shown evidence proceeding in a that consti validity attack on the tutes direct judgment. rule in this It is the settled of law which the the matter state passed in the must have rendition of court judgment against proceedings, to' the judgment, attack, im such mune from evidence collateral aliunde the record. [88 Tex. W. ju McDonald 33 S. Crawford v. 325], supra, and cases therein cited. The person of a liti risdiction over jurisdiction gant rests court process the due service of on such litigant, act some which amounts jurisdiction voluntary to the submission can en court. Before litigant, against such court tered to is bound sufficiency regularity inquire service, and the fact that suit constitutes a is rendered sive conclu presumption that court did investi pronounced gate valid, service even though judgment. is no recital of such fact in service non vel adjudicated by an issue thus becomes court. the record is held import verity, and absolute can courts in a evidence collater not be contradicted attack, not that the defendant to show al Stapleton al., 2 v. Wilcox served. et in fact App. 972.” S. W. proposition concur Neither refusing appellants that the court erred permission request for to file a trial their make attack a direct amendment request par judgment. came introduced their evidence chief ties had appellants introducing and while in rebuttal. Such an evidence amend their entirely up have set new ment action; arewe of that the did abuse its court discretion denying permission to file the trial amend ment. Bender v. Bender S.W. 735. Oiv. Finding record, judg- no error of the trial court is
ment affirmed. *2 Garage, tools, Brothers known as Sullivan expire January 1st,
Lease to Waldrop “[Signed] E. N. “Witnesses: “C. “Mrs. Audie Sullivan.” Sullivan L. Haskell, appellant. Odell, for of T. R. appel- Welch, Breekenridge, for H. of L. Waldrop leases sued Darnell cancel said lee. damages recover for the breach there- of, both, depending upon proper con- FUNDERBURK, petition plaintiff’s petition. Justice. struction of The try title, contained a count contracts, This suit involves two written as to which is to the effect of the follows: alleged show waiver. The second count Texas, County of of Throckmorton “State full), (setting said out in contracts them and entered this “This contract made and alleged compliance par- same with day of'January, 1929, E. between the 30th January 18, ties until about 1931. As to Texas, County, Waldrop Throckmorton N. garage alleged, aS the lease of the we it party part B. first and R. known given same was understand Texas, County, Darnell of Throckmorton exchange for release of the lease Janu- part, thei witness- known as second (covered ary 1929, in so far as the latter That covenants eth: consideration of the particular tract 32 acres out of an 80-acre part herein B. resentatives to the said E. of the said R. contained on the obligations therein as alleged, of Darnell described. The rep- his and Darnell of second expressed the written contracts wei’e kept performed he and alleged and addition thereto were Waldrop of the first doth N. expressed other tracts, in the con- hereby grant, said demise and lease unto the “to that Darnell wife were and his im- R. Darnell of its B. with care for retain in room which he was to provements County thereon, in the situated the house and to look Throckmorton, County, Throckmorton plaintiff in illness and feeble- event of his Texas, State of land herein to-wit: ness.” leased is all the now Tex- land I own next that a few Survey Emigration Company, an No. and Land prior January 18, 1931, months 3, 4, also on 14 and Lots and Blk. began plaintiff, and abuse threaten the goes 7 in said block with said to have house abuse, cursing “and after continued and hereby premises and hold the said land and threats of violence plaintiff, plaintiff through the defendant toward demised unto R. his the said B. Darnell and bodily fear ofi in- representatives from this until 1st date jury and from fear of his life the hands at day January A. D. Nineteen Hundred and compelled was forced and Thirty yielding (1935) paying Five and with lodg- to leave home his and to and find board his services as herein follows: services ing elsewhere,” and care etc. It was averred my washing rendered is board and and to February 1, thereafter, beginning I, Waldrop, live with said R. B. Darnell. N. plaintiff compelled per pay $22.50 party expenses part, my of the first are to bear own month, $250, aggregating for board above, other than mentioned and washing; plain- same was the result of said B. R. Darnell is to have the ex- ' home, tiff’s “and forced to leave his clusive use said lands above services though requested, that failed board, laundry has rendered, farming, grazing purposes. plaintiff refused to furnish said agreed further And that if there should be! in such manner care an oil well or drilled on wells said land above plaintiff home could remain his .in mentioned the said B.R. D'arnell is to re- same, receive failed and refused has eighth my eight (1/8) (1/8) ceive one one same, pay and has failed and refused produced that is from oil said land abovet farm, pay from fill- rents Signed Lusk, Texas, mentioned. this the ing garage and household station and D., day January, 30th A. use, kitchen'furniture, continues to Waldrop “E. N. enjoy occupy all) the ex- same to “R. Darnell B. damage plaintiff, and to his clusion in this “Witnesses: sum That the defendant $250.00. Hughes “M. S. judgment against him is not can- insolvent and a “Mrs. B.R. Darnell.” prayer for can- collected.” The Texas, County “State of of Throckmorton rents cellation of the lease the contracts “Lot No. Blk. Town of Town New year 1931, $250, sum of “or lodging I, “Know all men amount of his board and these that E. reasonable Waldrop, 1st, day, 10th, 1930, February
N. do sum. this since which is said November possession premises $250.00, my lease R. B. Darnell for room and and described,” washing, garage board and hereinabove etc. certain jury. time have rescission the mere claim for rescission will not waive While and cancellation. Two issues were submitted to “plaintiff one it was found damages (unless compelled obtain to an it amount leave his home election), any right board, laundry room, a claim for waive services elsewhere will *3 by conduct towards of rescission. As said Black reason defendant’s jury plaintiff.” the other Rescission Cancellation: “One who the upon necessarily brings is Darnell suit as R. B.- contract found defendant “that the enforceable, appeal is from serts that it is he valid and else insolvent.” The a writ of canceling judgment ordering it. could not derive a cause of action from the leases denying Hence, expressly possession, if is aware would of facts which but justify rescinding party. or other him contract other relief to entered, transaction but into which he has judgment shows the The nature of nevertheless an action institutes the construed the court below affirm this is an election of it and waiver a cause to state cotint of any right election of rescission and the cancellation action rescission Thus, example, if the made is final. so. seller pleading car Averments in the the leases. goods has been discovers that he allege ry an intention some indication of represen purchaser’s defrauded or that the pleading action, is the but such cause false, ability’ a.. tations ho has and reclaim the facts, his financial were as to executory wholly obligations do so. The insufficient thereupon right the sale to rescind provided in as the knowing if, goods; the they be, purport leases, nor are the do not price brings for the he an action effect be, or limitations conditions attachment) (with the waives the fraud cannot resort to pnable or without termination. ing liability to forfeiture the sale and affirms be, be con They purport and should proceedings if for rescission are be, covenants which strued to price by such suit.” to collect the leases. time the consideration same They supporting the latter Section As principles governed declared are Allyn Willis, Tex. v. text are cited the. 65; Tittering Ry. Chicago, v. M. Co. C. in ton, T. & Sims Wachsmuth v. 472, Am. St. 19 W. S. 84 Tex. W. 821. S. Gurley, Rep. 39, v. Johnson (cid:127) pleadings We therefore conclude that the provision the leases is no contract There judgment do not authorize the rendered. It If, there thereof. for breach forfeiture doubtful, however, pleading is if the pleading sufficient be-granted fore, it subject to a demurrer. are in- We obligations, the ly charged such a breach of although view, clined to the under the cir- follow. cancellation necessary it cumstances cide the demurrer, is not to de- for us allegations authorities.) (Same no are There question, against accident, well It is fraud, mistake. - pleading sufficient up predicate fraud that, in order settled But, damages. cayse state a of action for future, performed promises it to be so, judgment against if the defend- effect, necessary allege, is was on the action, ant 'of and no as- cause they no intention at the time signment brings error the cor- perform. promissor action. rectness Titterington, Ry. Chicago, C. Co. T. M. & (cid:127) discussed, opinion For the reasons our supra. judgment of the court below should why pleading reversed, judgment is in Another reason here rendered for accordingly sufficient to state cause of for rescis which is so or- is, it shows that sion and cancellation stantial a sub dered. (in way Rehearing. of the 'Consideration On washing furnished) re of board and Appellee, rehearing, in his motion for no, plaintiff. to of There offer ceived do argument to no us that we convince restoring original equity by status opinion, except that, up former erred in our any allegations parties, are there nor matter, on a reconsideration of the have obliga from the facts to excuse the tion to do justifies that the record us in hold concluded so. judg ing that the trial court rendered its theory the ment incorrect under another reason is Still alternative, plain pleadings evidence. Such same count and not recovery the al is our that we should have tiff seeks leged rendering judg instead of under remanded the case breach defendant’s appellant, knowledge ment for of the facts With full the leases. upon rehearing granted, plain claimed, should be our motion rescission is filed, aside, necessarily former set and that had when his suit was tiff he claim, damages for that the of the court the breach could not obligation reversed remanded. the same below be and at of defendant’s