*1 was driven off errand the automobile Margaret al., Appellants, O’BOYLE et the road and demolished. ground upon District which the BEVIL, Jr., al., Appellees. John R. Judge et was ordered dismissal of assuming that, Roller was even Miss No. 17158. States, employee she an of the United Appeals United States Court of en- of the accident the time not at Fifth Circuit. gaged employment. course of her Sept. 26, 1958. the errand considered District Court primarily convenience for the Rehearing Denied Nov. himself, undertaken Holcombe and not States; authority of the United words, far as that so the Gov- Roller was ernment was concerned Miss only negligence it
a volunteer for whose be held liable. taken, appeal Since this Govern- study counsel has made further
ment question un- and has concluded that authority
der the States, 1955, United Williams 76 S.Ct. is controlled L.Ed. light ap- Maryland which,
plicable Navy regulations, leads to acting conclusion Roller that Miss scope an em- of her
within the duties ployee the Govern- of the Club. While ground originally as-
ment abandons the signed suit, it con- for dismissal the Court was
tends that the action of grounds, passed upon other correct Court, District some which argued presented or in that
were not Among grounds are, that Court. these waived im- States the United has liability
munity of civilian torts non-appropriated
employees fund in-
strumentalities, such as this Officers’
Club; appellant’s aas status employee instru- civilian recovery;
mentality precludes his fellow doctrine defeats
that the servant claim; facts afford a and that the contributory negligence on the defense appellant’s part. best the interest of think it We issues, legal
orderly procedure that these factual, have the attention of should pre- are District Court Accordingly, appeal. judg- cm sented vacated, and will be the case re- ment proceedings. further
manded
Judgment and case vacated remanded. *2 Roberts, Hugh Freeland, F.R. G. Tex.,
Beaumont,
appellants.
Whitworth,
Tex.,
Jasper,
B. F.
James
Parker,
Parker, Jr.,
F.
F.
James
Beau-
mont, Tex.,
appellees.
HUTCHESON,
Judge,
Before
Chief
CAMERON,
and TUTTLE and
Judges.
Circuit
TUTTLE,
Judge.
Circuit
filed
the district court
proceeding
equity
as a
to remove as
alleged
upon plaintiffs’
cloud
titles
judgments,
two Texas state court
enjoin
their enforcement
defend-
judgments
ants. The state court
Bevil,
Sr.,
R.
John
obtained
an-
predecessor
in interest
cestor
of defendants
plaintiffs
the instant case.
Involved
are the issues of
this suit
whether
alleged
interest
League
Hawley
half
E.
question
of the Joel
state court
the land in
Num-
hereinafter described
Lot
chal-
them to
suits
to enable
sufficient
according
map of a sub-
lenge
ber
and whether
those
successfully
E. Haw-
division
said Joe
attacked
can be
*3
ley League,
in
Vol.
proceeding.
page
Records
92 of the Deed
motion to
after
The case
tried
County,
which ref-
Hardin
dismiss,
for sum-
into motion
converted
2
hereby made.”
erence is
mary judgment,
The court
denied.
defendants,
naming by
for the
number
entered
Then
followed
concluding
specif-
specific
conveyed.
lots
in-
right,
lands
map
re-
or interest
and
referred
in the deed
ic
judgments and
volved in the
Hardin
in
Deed Records of
corded
County, Texas,
judgments were
bear-
further
show a lot
does
fraudulently obtained; plaintiffs
ing
had not
in
deeds.
each number contained
law;
deprived
been
due
into lots
The subdivision is divided
corner,
judgments appearing
valid
number
in the northeast
verity and could
import
adjacent
one to
face
absolute
number
number
year
aside;
continuing
four
and
in
be set
the west and
numbers
was a bar
of limitations1
statute
is in the north-
Texas
order to number 21 which
every
plot.
asserted
action
cause of
Number
west corner of the
plain-
plaintiffs.
directly
From this
21 and the
number
south of
appealed.
lots continue east
tiffs
rest of the numbered
through
alternately
plot.
and west
discussing
propriety of the
Before
plot
approximately
center of the
court’s orders
district
large
land shown on
area of
there is
allega-
necessary
review
will
be
map
into
subdivided
is not
posture
parties
tions,
facts
num-
But
and not numbered.
detail.
in some
map
bering sequence
recorded
on the
Bevil, Sr.,
R.
Prior
John
way
plot
interrupted
in such a
defendants,
present
ancestor
equal sized lots
be divided into
Myers
the lands
common
W. D.
owned
perfectly
fit in with
and numbered
Hawley League,
Joel E.
known as the
pat-
numbered lots if the same
the other
By
County, Texas.
in Hardin
situated
numbering
sequence of
is fol-
tern
11, 1919,
September
partition deed of
example,
row
For
in the fourth
lowed.
Myers
Bevil and
space
the blank
north
of lots
League
with Bevil obtain-
divided the
lot 66
the west
is bounded
varas,
ing
missing
allowing
meas-
east,
the north 2325.5
title to
78 on the
placed
some 2049 acres.
ured out to
in the unnumbered
numbers to be
equal
of a size
area with each lot
September 22,
Bevil,
John R.
On
remaining
supply-
lots. This method of
deed
Texas
executed a
Sr.
Littré
missing
ing
numbers can
accom-
stating
Co.,
corporation,
Farms
Ohio
plot,
plished
row of the
with the
in each
$10,000.
consideration
a cash
area would
total
then
result
conveyed
described the
as fol-
deed
proper
of numbered lots
consist
lows:
picture
sequence. A
recorded
“Being
plat
annexed in order
to make clearer
Seven
Hundred
ten
description
land out of
(710) acres of
the north
it.
our
Statutes,
property
tively,
Revised Civil
Ver-
described in
1. Art.
art. 5529.
manner
Ann.Civ.St.
same
as the above deed.
non's
These
together
conveyed acreage
deeds
three
from Bevil
other deeds
Two
totaling substantially all the tract owned
evidence,
Farms Co. are also
Little
by Bevil.
reciting as consideration vendor’s lien
$9,035.00, respec-
$8,985.00 and
*4
During
Bevil,
allegedly
John R.
Sr.
1924-1925
Plaintiffs
derive their
Farms
executed releases
Texas Little
individually from
them
deeds to
totaling
considerations
Co.
recited
example
Texas Little Farms Co. An
$18,000. Thus,
deeds and re-
grant
part
descriptive
the total
purportedly
Bevil
leases in as follows:
veyed
$28,000 practically
entire
“
* *
*
following
Real Es-
League
Hawley
2325.5 north varas
County
situated
Har-
tate
acquired,
Texas Little
which he
of Texas
din in the State
Farms Co.
transcript
8471 reveals
.
...
suit No.
by publica-
bounded
as follows:
and described
citation
affidavit
day
tion was
it was
sworn
before
Sixty-sev-
“Being
Number
tract
day specified
appearance
filed. The
Hawley
(67)
en
Sub-
of the G.M.B.
January 14, 1946, yet
the citation was
Hawley
division of the Joel E.
appointed
represent
counsel
22, page
League,
recorded Vol.
January 7,
defendants
nonresident
Hardin
92 of
Records of
the Deed
was rendered
County, Texas.”
day,
entered
sev-
them the same
above,
plat on the
As
mentioned
days
appearance day.
en
nei-
specific page
Records of
Deed
ther suit did Bevil
into evi-
introduce
County
Hardin
does not show
purported
dence
from him to
deeds
plain-
corresponding
numbers
those
Texas Little Farms Co. or the deeds
instance,
as to
tiffs’ deeds. For
Little
the non-
Farms Co. to
lot “Num-
above
is no
described lot there
resident defendants. These
although
Sixty-seven (67),”
there is
ber
very conveyances which created the cloud
immedi-
area
lot
unnumbered
and which
on Bevil’s title
it
up.
ately adjacent
it.
*5
purpose
suits to clear
the
Bevil, Sr., in
institut-
John R.
perfectly
The
in
case makes
this
quiet
the Dis-
ed
title in
two suits to
plain, therefore, that
Bevil sold
in
County, Texas,
Hardin
trict Court of
descriptions
$28,000 by
1923 for some
naming
plain-
as defendants most of the
plat
in the land
taken
a
recorded
praying
in
for
the
suit and
tiffs
instant
County;
in
records of Hardin
adjudication
plaintiff.
in
The
title
sought
he
to set aside
same con-
the
on the
land in
was
containing
tract shown
issue
the
veyances
some one-third of
as to
the
plat
lots.
numbered
as not
descriptions
total on the
the
basis that
all nonresi-
were
Since
defendants
the
identify
inadequate
he
were
to
used
by publica-
dents, process was obtained
land;
against
he made
move
under Art.
Rules
defendants who were served
nonresident
Procedure,
as it
then
Rule 109
Civil
by
only
proceedings
defendants,
publication
in
and
appeared,
read.3 None of the
procedural
judg-
as to which there
defects
were
proceedings were
held
against
leading
judgments;
up
them.4
ments rendered
presenting
in
case
the court
his
to
transcript
the state suit No.
plead or introduce in
he did
either
bar,
in
in
the case at
very deeds which created
evidence the
petition
filed June
shows that the
alleged
by
his
which
clouds on
citation
affidavit for
but
brought
remove;
publication
to June
1945.
was sworn
to
were
such
suits
suit,
party
by attorney
himself,
by
Rule
“Where
or
of Ms
109:
answer
any
agent
attorney,
defendant,
selection,
shall make oath
if
hav-
or
or
own
any
appear by
answered,
ing
or at
is instituted
when
suñt
himself
fails
party
progress,
any
during
attorney
time
its
is called for
or
when
merits,
plaintiff
a non-resident of the
is
defendant therein
shall
trial
its
prima
State,
proof
from the
or
he
absent
will
him
entitle
make such
person,
whereupon
proper
State,
recover,
transient
that he
facie to
judgment
affiant,
unknown to
his residence is
entered.”
shall be
a citation for such
issue
the clerk shall
Rule 812:
by publication.”
service
defendant
by
Judgment
Default.
“No
(Italics added.)
by
shall be
“No
default
taken
entitling
provided
situation
but
the facts
Texas law
plaintiff
shall be exhibited to
follows:
trial;
and a
Texas Rules of Civil Pro-
court on the
statement
Rule
by
provided
filed as
:
law
of facts shall
cedure
in suits
rules
nonresi-
“Proof Ex Parte
and these
appearance
only
where no
“If the defendant has been cited
dents
this State
by
by
appear
publication,
them.”
and fails
has been made
showing
deficient
the true facts
court did
and neither do we reach
judgments;
appellants
the
judgments
court entered
these
issue. The
need not show
obtained,
course,
they
jus-
were
here
more
had a
than
without
actual
de-
subject
notice
ticiable interest in the
matter of
fendants.
they
litigation;
is that
had a
colorable claim to the land that
then
brought
nullify
suit
before the court. We do not need
de-
judgments.
effect
these state court
good
cide that
have
title to
judgments
are attacked on
basis
these tracts and we
leading
do not
so. We
up
do
procedural
defects
only
allegations
decide
their
under the Texas
au-
proof entitle
them to ask a
to look
thorizing
upon
nonresidents
into their claim that
were
ground
publication and on the
of fraud.
alleged
Appellants
void.
The fraud asserted is
defend-
proved
they
describing
hold deeds
ants,
presenting
case to the state
their
purporting
to lie within the
knowledge
tract
convey-
withheld
appellees
which
in their
described
Little
ances
Bevil to Texas
Farms
state court suits.
If these deeds had
and to
here.
Co.
been introduced
evidence in the state
presenting
A
such a state of
suit
court suits
court could then have
strongly
appeal
facts must
sense
they
cided whether
were sufficient on
justice
tribunal. Was the
identify
face to
tracts on the
dismissing
caused
ground
claims,
covered
the Bevil
reversal
error
calls
here?
evidence,,
not introduced
Reliance,
We conclude that
was.
and,
course,
opportunity
was af-
*6
sustaining
dismissal
trial
of
court’s
the
appellants
forded
undertake
to
to offer
suit,
placed
is
the
the defendants
first
any
proof
ambiguities,
any
to resolve
if
proposition
plaintiffs
on
the
the
were,
there
because
were not aware
standing to
the
attack
state
no
find,
all.
on
of the suits
We
careful
at
judgments, however vulnerable
court
record,
the
examination of
at least
they may be,
they failed
because
to al
holding
and
as between Bevil
those
under
lege
prove
in
an interest
the land
appellants’
parcels
him
claims of title to
litigated
in these suits. Such
over
was
in the
of land within that
out
state
set
of the trial court.
conclusion
We
the
more
a colorable
court suits
than
was
question, for
un
deal first with
one;
having
deeds,
all
that a court
the
doubtedly
party
a
must show
he
releases, records, surveys
testimony
subject
justiciable interest in
has a
the
understanding of the num-
as
common
to
litigation
in
maintain
matter
order to
Hawley
bering lots in
sub-
the
the
Jowers,
Hollar v.
thereabout.
Tex.Civ.
might well have construed the
division
721; City
App., 310
of Waco
S.W.2d
v.
appellants
as
each of the
deed
Akard, Tex.Civ.App.,
496;
veying specific lots within
unnum-
the
Cook,
115 Tex.
Yett
S.W.
A.”
marked “Lot
bered area
That
837; 39
Am.Jur.
Sect.
in
we
decide
order
hold
all
need
question
appel-
is:
then
did the
alleged
proved
justici-
a
allege
prove
lants
in the trial court
subject
able interest
matter of
subject
an interest in the
matter
the
state lawsuits.
give
court suits sufficient to
state
them
bring
standing to
action
set
next
We
come
the merits of
judgments?
court
aside the state
judgments. Ques
two
attack on the
Appellees contend,
setting
judg
as
trial
aside of
tions
agreed,
the deeds
court
appellants
are difficult
best. This
at
diffi
ments
respective
culty
claim title to their
when attack
increased
is made
adequate
judg
for lack
were void
on
de
a federal court
a state court
scription
principle,
land described in
however,
is one
ment. There
clearly
court
We
suits.
think the
out
state
trial
that stands
area of
controversy.
diversity
per
That is
notice to the defendants. Yet the
cases,
a federal
aside a
January
set
court
record discloses
equitable
days
state
for
day,
seven
before
the return
grounds
recognized by the state
disposed
entry
that are
case was
When,
judgment against
as a
as is
basis for
action.5
the defendants.
be set
true in
a
can
Under Texas
law it
is clear that
jurisdiction
aside for
fraud,
or
want
day
entered before the return
exercising
its
federal
Davenport Rutledge,
is void.
Tex.Civ.
similarly
jurisdiction,
equity
can act
App.,
Box,
187 S.W.
Sneed v.
diversity
case.
Tex.Civ.App.,
513
Allen,
here,
re-
broadened
Lutcher
43
v.
Tex.
alone,
prescribed
tion
Civ.App. 102, 95
acquainting
S.W.
It
is not
interested
572.
means of
liable
exactly
rights are
clear
what
Texas
parties of the fact that
finding
legal
where there is a
inev-
due
fact has
This
the courts.”
by publication,
citation
com-
an effort is
itably
strict
exact
the courts to
led
prove,
not that there was
provisions
pliance
of statutes
defect in either the form fact of
publication.
or
nonresidents
on
service
Galpin Page,
(which
publication
McKey, citation
supra;
Butler v.
v.
complaint many
373,
the source
of the
Cir.,
denied
certiorari
F.2d
9
138
cases),
Texas
636,
there was an
88 L.Ed.
U.S.
64 S.Ct.
321
defect,
e.,
anterior
Cir.,
i.
F.2d
the absence of a
Sparks,
125
10
v.
Harlan
valid affidavit. Whatever would be the
with the Texas view.
502.
accords
courts,
view of
think
Rutledge, supra;
we
Davenport
Har-
See
v.
requirements
proc-
constitutional
of due
Tex.Civ.App. 437,
Hill,
117
54
ris v.
holding
require
by any court,
ess
Tex.Civ.App.,
Park,
v.
907. Durst
S.W.
federal,
principles
contrary
301, does not hold
lifting
bootstraps
oneself
his own
stipula-
can
view,
was a
since there
prevent it, in case of a nonresident de-
truth on the
in that case as to the
fendant,
inquiring
into
facts
the fact sworn
date
was filed
disclosed
the record. But for
day
before.
verity
rule
absolute
have found
we
therefore,
conclude,
fail-
We
that the
that the record in these two cases dis-
ure
ute,
to follow
stat-
closes that
are denied due
making
required
process
if the
are allowed
during
pend-
as to nonresidents
oath
ency
spite
procedural
stand in
pro-
the suits vitiated the entire
fects.
Is it
less a denial of due
legal
ceedings,
since there
be no
may by
hold
that a court
legal
publication
citation and
absent
requirements
own fiat declare that
affidavit.
which the record
met
discloses were not
say
But,
defendants,
re
in fact
met? We think not. See Lutcher
Allen, supra, especially judgment
of the state
v.
citals
“duly
legally rehearing,
Although
95
defendants were
S.W.
by publication” import
judg-
personal
cited
verity
absolute
that case deals with a
shown,
by ment,
reasoning
not be
appli-
even
much of the
wrong.
record,
Appellees
Hansberry
to be
re
cable
See
Lee,
here.
ly strongly
Hays,
Williams
Tex.
U.S.
S.Ct.
L.Ed.
Bayou
follows, therefore,
13 S.W.
and Bemis
It
that as to a
*8
Development Company,
184 S.W.2d
nonresident defendant the rule of ab-
Appeals
verity
Texas
imposed
a
Civil
case.
solute
pre-
These eases
cannot be
to
inquiry
the broadest
terms
re
an
that
vent
into
facts
judgment
showing
of a
citals
that
has
that
nonresident service was not
legally perfected may
legally
been
peached
not be im
obtained.
parts
of the record
importing
verify
This rule
absolute
belying
study
many
A
fact.
that
would,
course,
be no bar to the attack
Texas cases shows that this rule is not
judgment in
on the
event,
case No. 8471 in
uniformly applied.
Simp
In Fowler v.
undisputed
because the
fact that
son,
79 Tex.
15 S.W.
the Su
judgment
days
was
that
entered seven
preme
excep
Court of Texas noted this
day
return
before the
conflict
finding
to the
rule: where the
finding
court,
with
the trial
since
judgment pointed specifically
to
respect
made
none
was
to that
fact,
e.,
itself,
basic
i.
the citation
to
matter.
support
finding,
fact
avail
appellants
judgment
equally
The
made
able on an
attack on the
to
finding.
disprove
exception
attack on
termined
the two
fairly
having
ground
fendant from
out-
his
failure
on the
litigated.
inescapable
lined
The
prove
plaintiff
plead
in his suit
to
that, knowing
very
trespass
try title,
he
clusion is
the defendant
deeds
to
knowledge
his
given
and would not have
Farms Co.
had
Little
Texas
to
attack,
plaintiff
given
they
to
title
which
had
good
required in
court
faith
the court and
on the
to
a fraud
amounted in law to
entitling
to
order to
due
appellants,
them
afford the
to
entitled,
setting
which
defendants were
aside.
to
a
them
give
to the effect
determining
fil
whether the
already purported
he
himself had
to
setting
ing
without
of a
to clear
suit
convey
ultimately
to others and
to these
plaintiff
himself
the deeds the
out
given,
defendants
tracts
as to which
of land
cloud
constituted
which
be,
colorable claim
has
now
relief,
sought
be the
can
he
from which
been,
were
same
judg
aside
of an action to set
basis
for which his
plaintiffs’
The
actions
filed.
courts
ments,
find
we
withholding
from
court’s
long
mislead
intentional
held that
consideration of
in-
deeds and the
withholding
ing
result
actions that
terpreting evidence contained
releases
that,
anof
issue.from
subsequently
he
executed amounted to
pre
party
actions,
would
the other
such
legal
may
type
fraud of the
basis
be the
sent to the
by appellants
availed of
set aside the
fraud.
to set aside
intervening
judgments. There are no
Terry,
Mills
33 Tex.
Davis
See
v.
equities,
present
as the
defendants took
Baird, Tex.Civ.App.,
v.
Bevil
from
descent.
in Alexander
full discussion
See
Hagedorn,
The facts as
to the omission of the
S.W.2d
148 Tex.
dispute.
information are not
stated:
where
legal
Equity
effect is clear.
could do no
“Only
fraud will entitle
extrinsic
prevent
appellees
less
using
than
complainant
because it
relief
advantage.
‘by
wrong
the oth
act committed
is a
pre
party
which
the suit
has
er
appel
There is no merit to the
losing party either from
vented the
by ap
lees’ contention that
this action
rights
knowing
or de
about
pellants
year
is barred
the four
stat
having
oppor
fenses,
a fair
fromor
ute
limitations.
bar
the stat
upon
tunity
presenting
them
in an action to
ute
set aside a
* *
words,
*.
In other
trial
fraud in
Texas does not commence
oppor
him
denied
fraud which
run until
knows of the
fully litigate upon
tunity
judgment,
inor
the exercise of due care
rights
he
or defenses
trial all the
ought
judgment against
know of the
[quoting
was entitled
assert’
him, Levy
Roper,
113 Tex.
Tex.Civ.App.,
Wright,
S.
State
Orr,
S.W.
Harrison v.
Tex.Com.
950, 952].”
W.2d
App.,
“Manifestly,
wrong oppression, and hence Hansberry 32, Lee, 1940, 311 61 U.S. proceedings in detail are attacked 2. The 22; 115, pleadings plaintiff’s L.Ed. Davis Wechs 85 grounds S.Ct. 22, 1923, 13, ler, 44 S.Ct. 68 263 U.S. Tex- follow did not Machinery 143; Shoe Co. requiring United L.Ed. statutes 451, 452, States, plead 1922, 258 U.S. v. United and to plead link link 708; 363, L.Ed. 66 Ward v. 42 S.Ct. well as of the defendant interest County Commissioners of Love description Board of tract the numbers; Oklahoma, 1920, 17, County, opin- 253 U.S. attacked, as the are 419, 751; out, points 64 L.Ed. Postal Tele Judge for want S.Ct. Tuttle ion of City Newport, plain- graph necessary Co. v. Cable to make out 464, 1918, 38 S.Ct. 62 L. defects as for as well tiff’s Cop 1215; Bigelow by publica- Dominion v. Old Ed. constructive at effort Mining Smelting Co., per & tion. 56 L.Ed. 32 S.Ct. U.S. O’Grady, 1941, Jurisprudence, Judg A American Smith 30 ments, See seq. 880 et §§ L.Ed. 61 S.Ct. U.S.
517 645, Co., Producing Co., Tex.Civ.App., 5 184 S.W.2d ment v. Union In White page page 178, 1944, 176, at 648: Cir., F.2d at 140 we stated: words, “In fails finding any join appellant in everything it vitiates “Fraud apparent upon fundamental error define; touches, is difficult foreclosure-judg the face of the what rule as to no absolute there is ment, contrarily, but is constrained fraud; and the facts constitute given recitals, as to hold provide knavish not ‘lest does ” herein the collateral attack ingenuity may it.’ avoid thereon, imported absolute a nul- fraud A lity. obtained plead verity to the extent that the as well as To the fraud establish citation, ings, the and other court jurisdiction render the the want of thereto, papers appertaining cannot re- for failure to observe be looked to for thereof, contradiction statutes, quirements that, consequence, brought judgment is in which there; controversy ends question may entire rec- consider the mani is the law of as is made pleadings, ord in the Empire fest these authorities: cases, may, proper evidence, and con- Albright, 126 Fuel Gas & Co. v. sider evidence.4 extrinsic 485, Levy 1092; Tex. Roper, 87 v. S.W.2d 251; 356, presents typical 113 Tex. 256 S.W. case before us 364, Clippinger, example equity Brown v. Tex. 113 where will intervene to 254; Hopkins Cain, 256 S.W. 105 insure only v. are condemned 1145; 591, hearing Tex. Burns, 143 Martin the whole S.W. v. after 676, proceeding 1072; 80 Tex. 16 invested with “the S.W. will be Chapman Kellogg, justice upon Tex.Com.App., v. attribute of which the ex- 151; judicial necessarily power 252 ercise S.W. Pure Oil Co. v. pends.” Reece, 476, 932; 124 Tex. 78 S.W.2d Dishman, 600,
Hartel v. 135 Tex. 865; Bowers, 145 S.W.2d Wixom v. Judge HUTCHESON, (dissent- Chief Tex.Civ.App., 896, 152 S.W.2d writ ing). merit; for want of refused Switzer opinion Of the settled law Smith, Tex.Com.App., v. 300 S.W. effort suit constitutes a col- 31, Treadway seq.; 68 A.L.R. et judgments which, lateral attack on Eastburn, 209; v. 57 Tex. Crawford taining plain jurisdictional recitals and McDonald, 626, v. 88 Tex. 33 S.W. contrary thereto, no recital be ac- must 325.”2 verity are, corded absolute there- This does mean am I fore, subject attack,1 to collateral opinion judgment appealed that the opinion I dissent and decision throughout. Quite affirmed should be majority. contrary, I think it should be affirmed The rule here relied on is thus correct- only to the extent it holds ly Bayou stated Develop- Bemis v. collateral attack Railway Co., 1915, Simon v. Southern Kellogg, Tex.Com.App., man v. 252 S.W. 115, 492; pages S.Ct. 59 L.Ed. 158-159. at Jurisprudence, Judg 30 A American Baird, Tex.Civ.App., also Mills See ments, 783-808; §§ and see also ib. §§ 312; Wright, 147 S.W.2d State v. Tex. 657, 855, 878-879. Civ.App., 56 S.W.2d and Alex 1. Of the Hagedorn, uniform multitude of cases to ander 148 Tex. effect, these, some of which are for a full SW.2d statement and dis by publication, may suits controlling law, only cited: Wix cussion Bowers, om Tex.Civ.App., generally, 152 S.W. collateral attack page 900; 2d 898 Dishman, at Hartel v. and extrinsic intrinsic fraud. Chap- Tex. *12 plead publication in and therefore maintained suits to cannot be the (2) specifically; their all their that it should be as to titles that reversed judgment, failure in other- features result to introduce evidence of the bring that, adjudication right plaintiffs up in the seek wise while validity publication proceeding in vel non relief nied, is de- suits this collateral instruments, right exist- their attack the the effect directly insti- in ence which them to which entered them had caused court requir- any way suits, prejudiced fraud would in tute constituted not Wright, ing setting judgments. hereby. Kelley affected aside Cf. Tex.Civ.App., a where clearly appears As statutes in the brought bill review a rules, pleading requirement en- same had theretofore court which existing, though specifically, one time at agree Indeed, tered it I was entertained. long repealed suits had been page 511 of statement appli- brought. here involved were majority: opinion in F.2d of the pub- governing rules cable statutes and provide specifically that lication suits contend, “Appellees and the trial only plaintiffs required to show are agreed, deeds prima in facie no decision title and appellants to their claim title held, law has ever nor under the respective for lack were void hold, the failure offer adequate description land of title con- defendants’ claim as to the suits. described in the state court fraud. stituted We think the trial did opinion respectfully I from the dissent neither do we reach this issue. appellants judgment. need show here justi- they more than had HUTCHESON, Rehearing denied: subject matter ciable interest in the dissenting. Judge, Chief litigation; that is that claim colorable the court. We then before not need decide that do good these tracts and title to only decide do do We we so. allegations proof en- their in- look a court to title them to ask MANKE, Appellant, Herbert William their claim void.” America, UNITED STATES of however, addition, our funda- Appellee. question of col- differences on mental No. 7612. regard attack, I direct con- lateral as established tradiction Appeals Court United States Park, Tex.Civ.App., Durst Fourth Circuit. and dissent S.W.2d Argued June court that clusion Sept. 24, 1958. Decided by the fact was made void No. publication was affidavit filing days before the filed two suit. holdings the court from which Other complete contradiction
I dissent of Texas and decisions statutes (1) are: there thereunder the Texas statutes in the
violation peti- failure notes