54 Tex. 324 | Tex. | 1881
It is contended by appellee Ashcom, defendant in the. judgment before the
There is a marked distinction between the question of mere personal privilege to be sued within the precinct or county of residence, and which privilege may be expressly or impliedly waived, and that of jurisdiction proper, which cannot be conferred, even by express consent.
The justice’s court had jurisdiction over the subject matter, and if Ashcom was served with process, this would have given the court jmisdiction over the person also, even though the suit had been irregularly brought in a precinct or county other than that of his residence, if he failed to appear and plead in abatement his privilege to be sued elsewhere. Morris v. Runnels, 12 Tex., 177; R. R. Co. v. Le Gierse, 51 Tex., 201.
We do not find it necessary to decide whether Ashcom3 the defendant in the judgment at law in the justice court, can, by a proceeding in the district court, in the nature of a bill in equity for this purpose, controvert the return of the sheriff showing service upon him, and prove by parol that, in fact, he was not served, and did not appear and defend the suit.
This is an important question which we do not wish to pass upon until absolutely necessary, and after full argument.
We deem it proper to here note the following, among other authorities, which in our investigation were found pertinent to this question: Owens v. Ranstead, 22 Ill., 161; Ridgeway v. Bank of Tenn., 11 Humph., 525, affirmed in Bell v. Williams, 1 Head, 229; Driver v. Cobb, 1 Tenn. Ch. (Cooper), 490; Crafts v. Dexter, 8 Ala., 767; Stubbs v. Leavitt, 30 Ala., 352; Newcomb v. Dewey, 27 Iowa, 381; Harshey v. Blackmarr, 20 Iowa, 161; Gregory v. Ford, 14 Cal., 138; Bank v. Eldridge, 28 Conn., 556; Propst v. Meadows, 13 Ill., 157; Walker v. Gilbert, Free
Under our statute a justice of the peace is required to keep. a docket, in which it is made his duty to enter, among other things, the names of the parties; the issuance of process, its nature and when returnable; the appearance of the parties, either with or without citation; and the judgment of the court. Pasch. Dig., art. 1182; id., 6292; R. S., art. 1150.
If it be conceded that in a proper case in a court of equity, the defendant to a judgment at law would be permitted, even in a justice court, to show that he was neither duly cited, nor had appeared in the cause, this, upon principle and the authority of analogous cases, should be. permitted only upon full and distinct averments supported by clear and satisfactory evidence. Randall v. Collins (decided at present term); Driver v. Cobb, 1 Tenn. Ch. (Cooper), 490; Windwart v. Allen, 13 Md., 196.
He should also act promptly, or show some good reason why he did not do so.
If strictness in allegation and proof and promptness in action are not required in such cases, no one could rest in security upon the judgments of our courts. Their validity would depend, not upon their intrinsic force and conclusiveness, but upon the frail, uncertain and possibly corrupt testimony of witness, and this, perhaps, after supporting testimony cannot be procured; thus undermining the most important rights of property.
There was no allegation in the present case denying the truth of the recital in the judgment .of the appearances by attorney of Ashcom, or that he did not have no
It further devolved upon Ashcom to show, not only that the judgment was fraudulently or unduly obtained, . but that' he had a good legal or equitable defense to the original demand or cause of action. House v. Collins, 42 Tex., 492; Taggart v. Wood, 20 Iowa, 236; Coon v. Jones, 10 Iowa, 131; Gardner v. Jenkins, 14 Md., 58; Walker v. Gilbert, Freeman’s Ch., 85; White & Tudor’s Lead. Cases in Equity (4 Am. ed.), vol. 2, part 2, p. 1369, citing authorities.
Especially should this doctrine apply in a case like the present, when relief is not asked until the demand of the judgment creditor is barred by limitation. Gregory v. Ford, 14 Cal., 142.
It is analogous to the doctrine that judgments by default will hot he set aside, until the apparent negligence is accounted for, and a meritorious defense shown. Cook v. Phillips, 18 Tex., 31; Fowler v. Lee, 10 Gill & J., 358.
This is the more necessary under our blended system of common law and equity, as, by the proper practice, both issues, as to the validity of the former judgment, and the merits of the defense, should he tried in the same suit. Roller v. Wooldridge, 46 Tex., 486.
Besides, when relief is sought in such cases by injunction, though a different rule applies in cases of appeal, if the judgment complained of is declared void for want of citation, it is the practice of our courts, the jurisdiction in the first instance having attached for the purpose of the injunction, to return it for trial upon the merits of the original cause of action. Witt v. Kaufman, 25 Tex. Sup., 384; Willis v. Gordon, 22 Tex., 241; Bourke v. Vanderlip, id., 221.
We are of opinion that neither the allegations nor the evidence warranted the judgment in this case, and the ' same is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 8, 1881.]