77 Tex. 283 | Tex. | 1890
—The law as it has been announced in numerous decisions in this State is against the claim set up by appellant.
It is settled that a judgment of a court of competent jurisdiction can not be collaterally impeached unless the record affirmatively shows the want of jurisdiction. Even where a part of the record—the citation and its return—shows that service could not have been had, the judgment of a justice of the peace reciting that the defendant wholly made default and that he “was duly served with process” was held not impeached. The judgment being the final act of the court, its judicial finding imports absolute verity. Evidence of fraud aliunde the record can not be heard to dispute the judgment, even where the fraud is in obtaining jurisdiction. The following are some of the cases decided in this State holding the foregoing doctrines: Murchison v. White, 54 Texas, 78; Fleming v. Seeligson, 57 Texas, 524; Odle v. Frost, 59 Texas, 684; Watkins v. Da
Treadway v. Eastburn, supra, extends the doctrine to the limit that where the judgment recites that the party was served the fact can not be disputed by the return of the citation. This case was followed by the Commission of Appeals in Davis v. Robinson, 70 Texas, 394. The doctrine is not singular. Freem. on Judg., sec. 132.
We have been cited by appellant to the case of Glass v. Smith, 66 Texas, 549, as holding a contrary doctrine. Smith recovered judgment in a Justice Court for a yoke of oxen, in which Glass, the defendant, acquiesced. “ Some person, without authority from Glass, without his knowledge and contrary to his wish, but in his name/’ took the case to the District Court by certiorari, where Glass failing to appear, judgment was entered against him by default for the oxen, and on his failure to return them, for their value, $50.
Execution was issued and levied on land in another county, which was sold; then another execution was issued and levied on personal effects of Glass, who sued out an injunction to restrain the enforcement of the judgment. It was shown that Glass was authorized to believe that no adjudication would be had on the proceeding. The injunction was dissolved, and on appeal it was perpetuated, the court holding that the court not having jurisdiction of the person of Glass in the certiorari the judgment was a nullity. For aught that appears in the record there was no occasion to hold that the judgment was a nullity to sustain the injunction restraining its collection under the statute which requires such suits (on voidable judgments) to be brought within one year from the time of the rendition of the judgment, certain exceptions being named. Sayles* Civ. Stats., art. 2875, and note.
Our opinion is the injunction was a direct proceeding between the original parties to vacafe the judgment and forever prevent its enforcement, in which case the opinion would not be inconsistent with other cases cited which refer only to collateral proceedings.
But be this as it may, the judgment enjoined did not recite any appearance for Glass. In the case before us the judgments recite that plaintiff did appear, and that it was at her instance and the instance of her co-plaintiff that the suits were dismissed.
These judgments are controlled by the law as announced in Treadway v. Eastburn, supra; they “ import absolute verity,” and are not subject to collateral attack. Many objections might be made to the principle by which we are controlled in making this decision; but it must be remembered that Mrs. Williams had the right to set aside these judgments by direct proceeding. She has not availed herself of this privilege, preferring
Affirmed.
Adopted May 13, 1890.
