Tanton v. State Nat. Bank of El Paso , 277 S.W. 449 ( 1925 )

Appellant brought this suit to set aside a former default judgment of foreclosure rendered against him and sale of land thereunder, averring that he had not been served in the former action. The judgment recited facts showing due service. The original notice to defendant — he being at the time a resident of Oklahoma — and officer's return thereon was missing from the files. In addition to the recital in the judgment of the facts showing due service, it was also shown by the undisputed testimony of the judge rendering the judgment that he examined the notice to Tanton and the officer's return thereon, and the same was in due form, and showed due service upon Tanton more than 10 days prior to the first day of the term at which the judgment was rendered, exclusive of the days of service and return.

Judgment in favor of appellee was rendered upon a verdict returned in response to a peremptory instruction. The correctness of the court's action in giving such charge is the only matter complained of by appellant.

Upon the trial, no evidence whatever was offered to show a meritorious defense to the original action.

Under the recent decision of the Supreme Court in Brown v. Clippinger,113 Tex. 364, 256 S.W. 254, it is definitely settled that, in a direct action to set aside for want of service a judgment which recites facts sustaining the court's jurisdiction, it is necessary to show a meritorious defense to the cause of action upon which the judgment was based. That ruling has been followed and applied in two later decisions by the Commission of Appeals. Duncan v. Smith Bros., etc., 113 Tex. 555,260 S.W. 1027; Lamb-McAshan Co. v. Ellis (Tex.Com.App.) 270 S.W. 547.

In the state of the evidence and under the ruling in the cases cited, the charge complained of was properly given.

Affirmed.