26 Tex. 32 | Tex. | 1861
This case presents questions similar to those in the ease of Thouvenin v. Rodriguez, 24th Texas R., 468.
In relation to the proof that was excluded in that as well as in this, of the death of Juan Cortes, it is said, “ But the fact of the death of plaintiff (Cortes) before suit, may be a circumstance conducing to the proof of fraud practiced in obtaining the judgment.”
Upon this ground the judgment in this case must be reversed. Appellant was not required to plead any facts showing the nullity of this judgment, or the title attempted to be acquired under it ; because the appellees had not set up in their answer any such title to the land in controversy/ If it were competent for the appellees to offer this evidence of title under the general issue, which we think it was, it was equally so for the appellant to rebut such evidence by showing the judgment to have been obtained by fraud.
This is decisive of this case. The other questions are left as indicated in the other case. In this case it was proved that Rodriguez, defendant in the judgment, was a non-resident at the time the suit was brought. Though we are not now prepared to announce a definite opinion upon its effect upon the validity of the judgment, under the provisions of the attachment law of 1839, should the same proof be made upon a new trial of the case, it is regarded as a question of serious consideration.
Judgment reversed, and the cause remanded for new trial.
Reversed and remanded.