*1 12122.) (No. DYER v. JOHNSON. Appeals Fort Worth. of Texas.
.Court Civil May 11, 1929.
Rehearing Denied Arnold, Graham, Cantey, T. Fred
Hanger
McMahon,
Scarborough,
Warren
McKnight,
Fort.Worth,
and Alfred
appellant.
all
McFarlane,
Graham,
MeFarlane &
appellee.
BUCK,
term,
April
At
J.
circuit
state of
and for
county
Mercer,
Johnson,
Fred W.
attorney,
through
Wilson,'filed
John M.
*2
judgment.
Dyer
Carpenter
M.
to vacate the
In the motion it
and E.
W. H.
notes,
nine months
there was no
for
due
was
consideration
for
on two
one
on;
-5,
on
interest at
the notes sued
the notes sued
that
with
after November
cent,
$500,
annum,
per
made
per
for
were
a certain
and
in connection with
one note
executed
and
cent,
contract,
per
mutually
1, 1915,
payable
can
was
with
December
semiannually,
naught,
date, payable
celed and held for
said
and
notes
interest
Dyer
by
agreement paid,
-by
and were
said
said
and were
both notes
Carpenter.
executed
by
payee
maker;
payable to returned
that
The
were made
notes
Benson,
pe- plaintiff
alleged in
had notice
and
and was aware
Charles
tition
it was
.of
said cancellation of
afore
had indorsed
the contract and notes
that Charles Benson
said,
agreement,
thereby
party
plaintiff,
and was a
said
and
and that
notes to the
by
same;
plaintiff
plaintiff,
for the is bound
Ered W.
became liable to
that
fendants
attorneys’ Johnson,
part
party
interest,
notes,
was
and a
interest
amount of said
owner of
on
fees,
the notes which were sued
here
etc.
same,
attorney,
Henry
Burgess,
in at
time of the execution
waived
E.
party
and
also a
cancellation
process
the defend
notice for
service
and
notes,
on
ants,
said
and he
recover
said
in favor of
cannot
and confessed
$2,100.10
have been
of notes
the reason
the same
plaintiff
and
that
costs
for the sum of
paid
allegations
agreed
canceled
him. Other
error
and
no
that writ
and further
judg
necessary
men
appeal
prosecuted
were contained not
here to
on
should be
or
ment entered
equity
hereof,
any
tion.
or
bill
virtue
vacate,
manner,
In
interfere,
any
with
connection with the motion
filed
Dyer
affidavit,
he
judgment,
W. H.
filed his
set
the defen
and released for
aggregating
might
that certain notes
more than
in deliv
interfere
dants all errors that
$17,600
Dyer
delivering
W. H.
ering up
had been executed
the execu
or in
same
Carpenter
payment
and M.
therein,
E.
certain
exe
to immediate
and consented
tion
lots owned
Benson and Anton
judgment.
Charles
on such
cution
Bros.,
Benson,
engaged
firm
of Benson
the laws
Under
Chicago,
real
estate
and
promissory
business
plaintiff
notes
may
by
on
be had
Carpenter
attorney
said
and
made and exe
any
a confession
notes,
$1,260 and
cuted two
one for
one for
notes, together
with
shown
amount
terest
given
$500;
part
just
*3
whole
ty
was an
and
credit than a domestic
and
judgment
by
thereto;
said
cited case a
took
rendered
the
the
notes,
$500,
county, Ill.,
for- circuit court of
in
of
the
and the note
Cook
favor
note for
plaintiff
against
they
given
defendant,
knowing
a
of
and
involved.'
was
suit,
purchase;
pleaded
in
said contract of
Like
this
and
defendant
purchase
mutually
plaintiff
an- showed that
of
the
and
in;
defendant
contract
original
by
parties
agreed upon
nulled
the
tlement of
in
suit had
the
thereto.
a full set
Subsequently,
litigation pending
and after
defendant
the notes under
the
Illinois,
Kansas,
fully
gone
Illinois
to
left
defendant had
by
paid
Texas,
discharged
upon
off and
H. L. Hebei
claim
which
the
there
pur-
based,
Burgess,
plaintiff
was
E.
latter who had
and H.
the
thereunder
ported
represent
in and
there
defendants
dismiss said suit and
prosecute
action,
petition
judgment.
of tres- not to
for declaration
filed a
The court
:
case,
pass
said
court rendered
on
$2,-
against
judgment
sup
“There
the defendants
is
in
evidence
record
ports
being
100.10,
on the notes
amount
the averments of
due
the answer as set out.
support
in
behalf The effect
“over and above the costs
this
evidence in
of these
expended.”
averments,
opinion,
in
sustained or
our
shows
judgment
Nothing
by
procured
further seems
been done
to have
the fraudulent
judgment
plaintiff
agree
with reference
until conduct of
in
to this later
violation of the
term,
1928,
district ment to dismiss
March
A. D.
of the
that the failure
Young county, Tex.,
original petition against
plaintiff
deprived
court
filed his
when
do so
of a meri
defendant
defense,
and torious
and that the defendant could
rely upon
agreement,
up
in
he had re-
this
which he set
and that from his
8, 1919,
judgment
judgment
and want of
covered
December
notice that the
was obtain
against
$2,307.90,
negligent
steps
taking
he
ed
the courts of Illinois
aside.
was not
in
had recovered
defendants
setting
attorneys’
interest,
looking
$191.91,
it
fees
with
prayed
It is
contended
court
have the defendants
first
cited
overruling
appear
petition.
in error
to
fendant
that the court
answer the
The
erred
answer, because,
answer,
demurrers to the
an
he set
defendant’s
filed
substantially
plead- under
4
section 1 of
Constitu
the facts
he
article
States,
judgment
tion of the
ed in his
United
effect
motion to vacate the
‘that
given
Illinois,
pleaded
full faith and
credit shall be
each
further
public acts,
to dismiss
records
the suit. The
state
proceedings
cause
tried
states,’
30, 1927,
judgment
judgment
June
missing
dis-
entered
upon,
sued
case as to F. M.
with-
prejudice,
subject
judgment
conclusive,
against was
out
the
and was not
to at
entered
procurement.
defendant
tack for fraud
W. H.
full
its
If it was
amount
judgment
original question
of the
theretofore rendered
us as one of first
8, 1919,
impression
him
state,
on December
this
would be inclined
strictly legal
the state of Illinois.
to hold
a
defense of fraud
urged
judgment
The court
could
found that the
to defeat a
a
not be
entered
Abbott,
in Illinois was
subsisting judg-
a
v.
valid and
sister state. Renaud
116 U. S.
ment,
629],
[29
Notes
“The two notes only facts, testimony and the balance on the note now $500 Dyer agreement made, H.W. but the that such $150.15, you I I believe that to stated testimony Schriver, attorney of H. M. your July 9, gave that on last brother Charles Dyer Carpenter the Illinois $3,903.12 me a new note of in full settlement agreed shows that said to be including to that date the above described vacated, set aside and and that the suit was date, notes and the accrued interest by agreement “dismissed” between at equity I what had a lot in Brookfield.” torneys It true defendant. Johnson testified in the Texas suit, the instant testified and, deposition, although the case asked attorney that he did not authorize his to dis letter, it, writing about this and he never denied agree same, miss but to dismiss the never denied that he $500 wrote that the ordinarily attorney an of record im has reduced, by payment note or other- plied authority to dismiss suit filed if he say wise, $150.15. He did that the settle- fit, sees or to discontinue one or ment mentioned this letter Charles Ben- Corpus Juris, p. 646, several defendants. 6 giving $3,903.12 son’s him a new note for 151; Seeligson Gifford, App. 46 Tex. Civ. full settlement the two notes sued Evidently W. 103 S. be consummated; on had never been Ben- give to, low did not due consideration or in give prop- son him a lien on some all, testimony Carpen fact consider at erty, not done had ob- agreement so. ter and Schriver that such an tained in Illinois sued on Texas made. been alleged opinion full appellant amount of the two notes We are of the by Dyer opportunity interpose been denied an have executed payments the Illinois court his claim of with no allowance on the attorney between him and his hand and on the one note. $500 attorney appellee here, Forrest, the- if not In Rea v. 88 Ill. the Su- himself, hand, preme said, quoting the other Illinois have adjustment suit in Illinois dismissed an because headnotes: made, payee and settlement had been “Where the note than more return .assigned the notes reimburses himself from a note Judgment security, Illinois. was recovered him the maker collateral there; judgment being collateral, ‘such basis retains he will not be entitled Appellee payment suit Texas. principal testified to enforce note thus that, although paid; stant been to the thereon, and if he takes un- eight years prior power attorney some obtained or nine thereto, der a without the er, attached Texas, knowledge he had not notified or consent of the mak- of such because he it will be fraudulent and void.” try did not want them to to cover their In First National Bank of Danville nothing assets. of Cunningham, testified he knew Kentucky a suit to enforce judgment having obtained, .judgment or of a theretofore to have been Illinois, the failure opinion by dismiss said Court, obtained Circuit said, quoting head- from the it is notes: Validity— “1. on Confession — Fraud. in a note contained “A warrant of remains force to confess thereon unpaid ; long note is as the receiving payee, there- satisfaction after pro- fraudulently fact, of, conceals judg- appear and confess cures knowledge or con- the maker’s ment without sent, appearance confers void. Vacate —Collateral “2. Same —Motion Attack. fraudulently “Where a defendant, absence of obtained subsequently vacate the that he moves fact withdraws his and afterwards same by ap- not constitute does leave render pearance will such as the action impeach valid, and he still suit. in a collateral Judgment of Another State —Collateral “3. Law. Attack —Constitutional provision of the federal constitution “The given in shall and credit full faith