Hudson v. Nowell & Son , 1928 Tex. App. LEXIS 741 ( 1928 )

I regret that I cannot concur in the conclusions reached by the majority in this cause. I do not concur in the statement, made in the majority opinion:

"That the major purpose of this suit was in effect to remove the cloud from the title of defendant's land, created by its sale to C.J. and D. T. Grammer."

The writer thinks that the evident purpose of appellant here was to set aside the judgment of the justice court. Appellant attacks, first, the writ of attachment, on the claim that the caption on the back of the affidavit for the writ contained the number of this suit and is styled "Nowell Son v. W. W. Hudson," on the face thereof, and at the top is given "Nowell Son," and in the body is stated that "W. B. Nowell, a member of the firm of Nowell Son," plaintiffs, and does not show anywhere in said affidavit for attachment the names of each member of said firm of Nowell Son. Further, the affidavit is defective by reason of the fact that same does not state whether or not the debt sued for is due, nor what the debt is for.

Appellant further attacks the bond for attachment, in that it does not state the names of the members of the firm, and does not state whether it is a firm or a partnership. The writ of attachment is dated February 19, 1927, and states that the same is to satisfy the demand of Nowell Son, without specifying whether said Nowell Son is a joint-stock company, association, or partnership, and without naming the partners, if the plaintiff in the original suit was a partnership. He further attacks the judgment dated April 4, 1927, and claims that the same is null and void for the following reasons: That said suit on which the judgment is based was instituted in the name of Nowell Son, without showing in any manner the names of the plaintiffs, and without showing whether plaintiff was a joint-stock company, a corporation, or a partnership, and that the citation on which said judgment is based does not give the members of Nowell Son. He further pleads that said citation states said suit was instituted upon open account, and that there is no written account shown. He further attacks the alias execution, for the reason that said alias execution was based upon a void judgment, and that therefore it is void.

In said alias execution it is stated: That it is based upon a judgment recovered at the April term of court, and in fact said Judgment was rendered on April 4, 1927, at the March term of court. That said alias execution is returnable within 90 days from the date of its issuance, whereas the law requires such execution in the justice court to be returned within 60 days of the issuance thereof. That the names of the plaintiffs are given only as Nowell Son, without stating whether the plaintiffs are a corporation, a joint-stock company, or a partnership. Numerous other grounds are contained in the motion, tending to show that the proceedings in the Justice court were irregular, and that the order of sale and the judgment were null and void. He alleges that the purchase of the land by the Grammers did not convey to them a good and merchantable title, and in his prayer he prays that the attachment, judgment, alias execution, and all proceedings thereunder be adjudged to be void. We do not think, because the court was not vested with jurisdiction to remove the cloud on the title on the property sold under the execution, that appellant should have been denied such relief as he showed himself to be entitled to. The majority opinion says:

"We do not wish to be understood as holding a justice court is without power, on motions seasonably presented, to correct informalities and irregularities in its judgments and executions."

Therefore the writer assumes that such is the fact, but we question whether this motion was "seasonably presented."

Article 2236, 1925 Codifications, provides that:

"In cases in which judgment has been rendered on service of process bypublication [italics ours], where the defendant has not appeared in person or by attorney of his own selection: 1. The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit filed, within two years after such judgment was rendered. * * * 3. If property has been sold under the judgment and execution before the process was suspended, the defendant shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale."

See Cleveland v. Tufts, 69 Tex. 580, 7 S.W. 72.

But in the instant case the defendant in the original suit was personally served with citation, although there is, perhaps, some irregularity claimed in regard to the service. A default judgment may be set aside upon a bill of review. But in any case the petition must show that the failure to answer, or, as in this case, the failure to call the trial court's attention in term time to any defect, irregularity, etc., of the procedure, was not due to any fault or negligence of the petitioner. (2) He must show that the Judgment rendered was unjust to him, and upon another trial the judgment would likely be different; i. e. more favorable to petitioner. Benavides v. Lucio (Tex.Civ.App.)297 S.W. 476, and cases there cited. Hence the writer concludes that the appellant did not place himself in a position to be entitled to favorable action by the trial court on his bill of review.

It is true, if the allegations of defects and irregularities in the trial were true, which must be so accepted as against a general demurrer, the Judgment of which the appellant complains was a nullity. A void Judgment may be attacked anywhere; that is, in a court having Jurisdiction to enforce its judgments — in the instant case, the district court. Since the Justice court has suffered the property to be sold under what is alleged to be a void Judgment, appellant, by a suit for injunction, and otherwise, can have the justice court Judgment reviewed. And if his allegations are supported by the evidence, he can have the Judgment of the Justice court set aside, and plaintiffs in the Justice court held liable for the value of the property taken by means of such void process.

The writer concurs in the affirmance of the judgment of the trial court, but not for the reasons stated in the majority opinion.