Cooke v. Thornhill , 16 Tex. 177 ( 1856 )

Wheeler, J.

The plea in abatement states “ that the'estate “ of the said Parthenia Thornhill, before and at the time of the “ commencement of this suit, and the filing of this amended “ petition, was and still is in charge of one Ross ; who was “ and yet is the committee of her estate, duly appointed accord- “ ing to law, who is yet living, to wit, at,” &c. This plea was not verified by affidavit. But it is said this was not necessary, because its truth appeared by the record; that is, by a deposition in the transcript of the record of the suit in Mississippi, exhibited by the plaintiff. This, however, is a mistake. It appears by the deposition referred to, that the plaintiff was a Itxnatic resident in Virginia ; that one Ross' was her committee in that State, many years before the commencement of this suit; but not, as averred in the plea, that he was so “ at the time of the commencement of this suit,” &c. The plea, therefore, if otherwise legal and sufficient, was rightly adjudged insufficient, because not verified by affidavit.

The transcript of the record from*Virginia was offered to prove the matter stated in the plea. It could not have- been offered for any other purpose ; for it was not relevant to any other issue in the case. But the plea having been adjudged insufficient, the Court very preperly refused to admit evidence in support of it.

It is urged that the Mississippi judgment, being the judgment of a Court of law, is not conclusive as to any equitable defence which the defendant might have ; and that fraud is such a defence. The principle contended for may be admitted ; but whether fraud, consisting of matter which was known and equally available to the defendant, when he pleaded to the action in Mississippi, is such a defence, is questionable. Fraud is, in general, equally cognizable in Courts of law and equity. However correct the general principle contended for, it manifestly has no application to this case. The alleged fraud was in obtaining the judgment in Mississippi. The Court sustained the plea. But there was no proof, or offer to prove, that any fraud was practiced in obtaining the judgment. Yet the Court, in its charge to the jury, gave the defendant the full benefit of that defence. It is difficult to comprehend how the defendant’s counsel can conceive he has any ground of complaint, as respects the rulings of the Court upon this defence, when they were all in Ms favor. The Court might well have refused any instruction upon that subject, as inapplicable to the evidence.

As respects the right of the plaintiff to maintain the action for the recovery of the property in this State, in the same capacity and right in which it was adjudged to him in the State of Mississippi, the case of Carr v. Wellborn, decided by the Supreme Court of the Republic, (Dallam, 624,) and re-affirmed, on a second appeal, by this Court, (1 Tex. R. 463,) is in point; and is decisive of the question in favor of the plaintiff’s right. The act of 1848 (Hart. Dig. 1564,) can have no bearing upon the present case, for it was passed after the commencement of this suit. The judgment is affirmed.

Judgment affirmed.