Snow v. Hawpe

22 Tex. 168 | Tex. | 1858

Wheeler, Ch. J.

The plaintiffs show, by their petition, that the judgment, which they seek to review and avoid, was obtained on service by publication, and on an ex parte hearing; and they aver that they had no notice, in fact, of the suit, and that they had a good defence to the action. This clearly entitled them to have the judgment set aside, and a new trial awarded in the former suit. (Hart. Dig. Art. 783; Mussina v. Moore, 13 Tex. Rep. 7; Kitchen v. Crawford, Id. 516.)

The plaintiff, Mrs. Snow, being a married woman, at the date of the proceedings and judgment, in the case sought to be reviewed, and so continuing, is within the saving of the statute in respect to femes covert; and, consequently, is not barred of her action. (Hart. Dig. Art. 783.)

The plaintiffs allege, moreover, that the cause of action, upon which the judgment was obtained, was false and unfounded, and that the judgment rendered thereon, is fraudulent and void; and they make the record of the proceedings in the case, a part of their petition, and charge the defendants with notice of the illegality and fraud in the rendition of the judgment, and the proceedings thereon. The allegations of the petition are clearly sufficient to entitle the plaintiffs to have the judgment set aside, as to the defendant Eerris. The allegations of notice, are sufficient to charge the other defendants with all the consequences of the wrongful acts and proceedings of their co-defendant, and to avoid their purchases, at the sheriff’s sales, under the executions issued upon the judgment. There is, therefore, error in the judgment of the court sustaining exceptions to the petition, and dismissing the case; for which the judgment must be reversed, and the cause remanded.

Reversed and remanded.