60 Tex. 36 | Tex. | 1883
— There is but one assignment of error, which is in substance as follows, viz.: The court erred in sustaining the second, sixth and seventh special exceptions of the defendant to the plaintiff.
The second of these exceptions is as follows: “That the allegations of fraud in the execution of the note sued on, in the original suit upon which judgment was obtained, are too vague and indefinite, and not sufficient in law to impeach said note in this suit.”
The plaintiff’s allegations are that he signed a note for $1,700 as surety for White; that after his signature was placed upon it, it was fraudulently altered, either by White or by the defendant, so as to make it a note for §2,046, and that the judgment was taken against him upon this latter note. These allegations appear to us sufficiently specific, especially when tested by the very general exceptions of the defendant.
But appellee, in his brief, insists that these allegations of the plaintiff were not verified by his affidavit. That objection should have been addressed to the court below. It is vain to urge it here, after he has by his exception admitted the allegations to be true. The plaintiff does not appear to have asked for a preliminary injunction, and when that relief is sought after final hearing, the petition, as a general rule, need not be sworn to. Eccles v. Daniels, 16 Tex., 136.
The sixth exception is as follows, viz.: “ Plaintiff in this action cannot impeach the return of the sheriff, showing that plaintiff was duly and legally cited to answer in said original suit; and if he could, the allegations and prayer of his petition are not sufficient in law for that purpose.”
Appellee refers us to the cases of Fitch v. Boyer, 51 Tex., 344, and Lawler v. White, 27 Tex., 250. The doctrine of those cases is
"What we have already said disposes of the seventh exception also, and we need not comment upon it. If the plaintiff’s allegation, that the false return was the result of a combination between the plaintiff and the sheriff, this suit can be maintained notwithstanding the recitals in the judgment. Freem. on Judg., sec. 495.
But appellee insists that the petition was rightly dismissed because it showed that the judgment in the former suit was rendered on the 6th day of January, 1874; that the plaintiff learned the fact on the 11th of the same month; but does not allege that the court had then adjourned, or give any reason why he had not filed a motion for a new trial at that term. And he refers us to the case of Bryorly v. Clark, 48 Tex., 345.
In that case Bryorly had been served with process, and a judgment by default was taken against him while his counsel was temporarily absent. He filed a motion for a new trial ' which was overruled. He afterwards, and while the court was still in session, filed an original suit to set aside the judgment.
The supreme court held that, as the district court was still in session, and could set aside the judgment upon motion at any time during the term, Bryorly, instead of bringing a new suit, should have set up the same facts in an amended motion for a new trial, or should have shown some good reason for not having done so.
We do not think that there is any necessary resemblance between the two cases. And if this objection had been made in the court below, it might perhaps have been met by the plaintiff.
Our opinion is that the judgment should be reversed and the cause remanded.
Reversed and remanded.
[Opinion approved June 12, 1883.]