Shaw v. Proctor , 193 S.W. 1104 ( 1917 )

On Motion for Rehearing.

We fell into error in our former opinion in stating that the court below rendered judgment vacating the judgment in cause No 20340. This was incorrect, as the judgment herein did not vacate said judgment in case No. 20340, but allowed it to stand, and enjoined the execution issued by virtue thereof and levied on the property in controversy in so far as Nettie Proctor was concerned.

Being under the impression that the trial court had vacated the judgment theretofore rendered in cause No. 20340, we fell into error in affirming the judgment of the trial court, and after reconsidering the case we think said judgment as to Nettie Proctor ought to be reversed, and here rendered for her, for the reason the judgment in cause No. 20340 as to Nettie Proctor is void; the court being without any power to render such judgment against her as stated in the original opinion.

Appellants contend, in effect, in their motion for a rehearing, as in their briefs, that said action was not an action to vacate and set aside the judgment in cause No. 20340, for that all of the original parties to the same are not parties to this suit, and that there is no prayer to vacate said judgment. In this suit Fred J. Proctor, the husband of Nettie Proctor, was not a party to suit No. 20340, while Louis F. Proctor and O. H. Bussy, Jr., who were defendants with Nettie Proctor in cause No. 20340 are not parties to this suit. Fred J. Proctor, as husband of Nettie Proctor, joining with her, was a necessary party in maintaining an action to vacate said judgment, while Louis Proctor and C. H. Bussy, Jr., were in no position to have the judgment set aside, and were not necessary parties in this suit.

The amended petition on which the parties went to trial set out the proceeding in the case No. 20340, alleging that the court was without jurisdiction to render judgment against Nettie Proctor, with allegations duly attacking said judgment, and that it “be set aside and vacated,” and closing said petition with a prayer, among other things, “for such other and further relief, both general and special, in law and in equity, as they may show themselves entitled to.” This we think, in effect, was sufficient for the granting of relief to vacate said judgment.

The appellees claim that they are entitled to judgment for the sum of $205.85. It is insisted by appellants that there is not pleading in the record upon which such a recovery could be had, as shown by the amended petition on which a trial was had. With this we concur, and adhere to our original holding on this proposition.

The judgment heretofore rendered by this court will be changed as follows: The judgment of the court below, holding the judgment in cause No. 20340 binding, is error, and reverse the same as to Nettie Proctor, and here render judgment, and setting aside the judgment in cause No. 20340 as to Nettie Proctor, and in other respects affirm the same.

Appellees’ motion for rehearing is granted in part, and overruled in part.

Appellants’ motion is overruled.