235 S.W.2d 686 | Tex. App. | 1950
This is an order of the District Court overruling what appellants denominate a bill of review in which appellants sought to have a judgment of the court set aside -and a new trial granted upon the grounds which appellants assert rendered the original judgment void.
On June 3, 1947, after the trial court in the adoption proceedings had acquired jurisdiction of all the parties and the subject matter, the legislature p-assed what is now Article 46a of Title 3, Vernon’s Ann.Civ. St., pertaining to adoption. This act became effective on September 5, 1947. Section la of said Article requires the clerk of the court to mail a certified copy of the petition to the Executive Director of the State Department of Public Welfare at Austin upon the filing of such petition in the court. Upon a hearing of the motion to set aside the judgment in question it was stipulated that this provision was not complied with. It is the -contention of the appellants that since this provision of the amended statute was not complied with that the judgment entered denying the adoption of the minor by appellants was void and therefore the trial court should set the same aside without reference to -any equities being shown.
It seems to -be a settled rule that a trial court may set aside a void judgment w-hen such matter is called to his attention, either -on motion of one of the parties or upon the court’s own motion. See: Jones et al. v. Bass, Tex.Com.App., 49 S.W.2d 723; Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89. This is especially true when the record upon which the judgment is based reflects the vice. In this case, -however, it was necessary for the appellants to go outside the judgment roll and show by evidence or -by a stipulation that the omission of which they complain -actually occurred, since the judgment roll -does not reflect that a certified copy of the petition for adoption was not mailed by the clerk of the court to the Executive Director of the State Department of Public Welfare at Austin. However, if the record showed such vice we are of the opinion it did not render the judgment in the trial court void. As above stated, the trial court’s jurisdiction attached over the parties and the subject matter before the -amendment of the adoption statute, which became effective September 5, 1947, and it is not believed that the additional procedural requirements provided for in such amendment had the effect nor -did the legislature intend for it to have the effect of ousting the jurisdiction of a co-urt which had already attached. It might be that these defects would render -a judgment entered by the trial court voidable, but it is not believed that it would render such judgment absolutely void. Since there was no attempt on the part of appellants to allege or prove that the judgment complained of in Cause No. 9205 was obtained by fraud, -accident, mistake or wrongful acts of appellees, unmixed with any fault or negligence on the part of appellants and that appellants had a mérito-
For the foregoing reasons, the appellants’ points are overruled and the judgment of the trial court is affirmed.