American Spiritualist Association v. City of Dallas, 16148

• Decision Date: 15 March 1963
• Docket Number: No. 16148,16148
• Citation: 366 S.W.2d 97
• Parties: AMERICAN SPIRITUALIST ASS'N, a Corporation, Appellant, v. The CITY OF DALLAS, Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 97

366 S.W.2d 97

AMERICAN SPIRITUALIST ASS'N, a Corporation, Appellant, v. The CITY OF DALLAS, Texas, et al., Appellees.

No. 16148.

Court of Civil Appeals of Texas, Dallas.

March 15, 1963.

Rehearing Denied April 5, 1963.

Harold C. Abramson, Dallas, for appellant.

H. P. Kucera, City Atty., Ted P. MacMaster and Max E. Noller, Assts. City Atty., and Vactor H. Stanford, Dallas, for appellees.

WILLIAMS, Justice.

American Spiritualist Association filed this suit against City of Dallas and Dave Ravkind, the action being in the nature of a Bill of Review seeking to set aside and hold void a default judgment, together with a Sheriff's sale, and a deed issued pursuant thereto, in cause No. 35865/F styled City of Dallas v. American Spiritualist Association, a corporation, which was a tax foreclosure suit. The present action also requests the removal of a cloud from the title to the real property involved. As grounds for the Bill of Review plaintiff alleged that it had not been legally served with citation, due to misnomer of the corporation, and further that there had been a misdescription of the property which would render the judgment and Sheriff's deed void 'and/or' voidable. As a part of its Bill of Review application plaintiff said 'it has good grounds of defense and has not been negligent and has not lacked diligence in the premises.'

James O. Calvin, d/b/a Mid-West Meat Company, intervened in the suit, contending that he was the present owner of the property in controversy by virtue of a Sheriff's deed growing out of a suit against Dave Ravkind, and others.

The District Court, following a non-jury trial, found against the plaintiff on all issues and rendered judgment denying any relief. From that judgment appellant appeals, contending in three points of error that (1) the trial court erred in denying appellant relief for the reason that the entire proceedings in the suit of City of Dallas v. American Spiritualist Association was void as a matter of law, or in the alternative, voidable by the direct attack of appellant; (2) that the intervener is not a proper party to this proceeding; and (3) the trial court erred in not entering judgment removing cloud from title of appellant to the real estate involved. Upon careful consideration of these points we find the same to be lacking in merit and the same are overruled and the judgment of the trial court is affirmed.

At the outset we observe that no request was made for findings of fact and conclusions of law and none were filed by the trial court. Therefore the trial court's judgment implies all necessary fact findings in support thereof. In our review wherein we seek to determine if there is any evidence to support the judgment and the implied findings of fact incident thereto 'it is proper to consider only that evidence favorable to the issue and to disregard entirely that which is opposed to it, or contradictory in its nature.'

Austin v. Cochran, (Tex.Com.App.) 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Renfro Drug Co. v. Lewis, (Sup.) 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

We must first ascertain the exact nature of the attack made by appellant on the prior judgment. Appellant, in its brief says that this suit is brought as 'a direct and/or a collateral attack upon the judgment and proceedings generally in cause No. 35865/F in the 116th Judicial District Court of Dallas County, Texas, styled City of Dallas v. American Spiritualist Association.' The attack must be either direct or collateral. The rule which we follow in deciding the nature of the attack on the judgment in question was announced by the Supreme Court in Brown v. Clippenger, 113 Tex. 364, 256 S.W. 254, in which the Court held that where a judgment recites facts sustaining the court's jurisdiction rendering the same, it is not subject to collateral attack and an action to set aside a judgment, which is not void on its face was insufficient as a matter of law. In the case of Gehret v. Hetkes, (Tex.Com.App.) 36 S.W.2d 700 in an opinion adopted by the Supreme Court, it was held that a judgment was void only if the record discloses want of jurisdiction by the court which rendered such judgment, otherwise, the judgment is merely voidable and can be attacked only in direct proceeding. The Court said, in part:

'Whether a judgment of a court of record is void or voidable must be determined from an inspection of the record. If the record discloses that the court rendering such judgment was without jurisdiction, the same is void and open to attack in a collateral proceeding; if it does not, the judgment is merely voidable and can be attacked only in a direct proceeding. Morris v. Halbert, 36 Tex. 19; Maury v. Turner (Tex.Com.App.) 244 S.W. 809; Ringgold v. Graham (Tex.Com.App.) 13 S.W. (2d) 355.'

We have carefully reviewed the judgment in cause No. 35865/F of the 116th District Court, styled City of Dallas v. American Spiritualist Association and find nothing on the face of that record to show that the court did not have jurisdiction. Such judgment contains all of the plain jurisdictional recitals which must be accorded absolute verity. Accordingly, such judgment is not subject to collateral attack. Wixom v. Bowers, Tex.Civ.App., 152 S.W.2d 896; Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865; Chapman v. Kellogg (Tex.Com.App.) 252 S.W. 151.

Since this must, of necessity, constitute a direct attack upon the judgment previously rendered by the 116th District Court in City of Dallas v. American Spiritualist Association, and since such direct attack is made by a petition in the nature of a Bill of Review, we must now determine the sufficiency of such effort on the part of appellant.

A Bill of Review, or a petition in the nature of a Bill of Review, is a proceeding in equity having for its purpose the reversal of a prior judgment of the trial court. 22 Tex.Jur.2d 569, Sec. 28. One of the prime essentials of a proceeding of this nature to have a judgment set aside by Bill of Review is that it must be shown that there existed a meritorious defense to the cause of action; that the complainant was prevented from presenting that defense through extrinsic fraud, accident, or mistake wholly unmixed with any fault or negligence of his own, so that he was compelled to suffer the judgment by circumstances beyond his control; that he has not been guilty of a lack of diligence in failing to avail himself of any means to set the judgment aside, and that no other remedy is available. 22 Tex.Jur.2d 572, Sec. 30. The Supreme Court in the recent case of McEwen v. Harrison, 345 S.W.2d 706, held that in a Bill of Review proceeding the plaintiff must allege and prove that he was not negligent and that he had a meritorious defense as to the suit, the court saying, in part:

'In a bill of review proceeding the plaintiff must allege and prove that he was not negligent in suffering the default judgment to be rendered against him and that he has a meritorious defense to the suit. Our decisions require that the two issues be tried together so that the court may render a new final judgment. (Citing cases).'

The Supreme Court in the now familiar case of Alexander v. Hagedorn, 148 Tex 565, 226 S.W.2d 996 announced the rule, as follows:

'Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, err. ref. Because it is fundamentally important in the administrations of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments 'are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted'; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done.'

We have carefully examined the entire record in this case and find that although appellant did, in its petition allege, in general terms that 'it has good grounds of defense and has not been negligent and has not lacked diligence in the premises', yet no proof whatsoever was introduced in support of these allegations. As said by the Supreme Court, it is not only necessary to allege these essential facts but to introduce evidence in support thereof in order to obtain equitable relief in an application for bill of review. During the trial of this case appellant made no effort to introduce evidence concerning any possible defense which it might have had to the original cause of action, nor was any evidence introduced to show lack of negligence or diligence on the part of the appellant, or its attorneys, in preventing the default judgment from being rendered. In the light of these facts, and in view of the well-established principles of law enumerated above, appellant has failed in its direct attack on the judgment and the trial court correctly denied the relief requested.

Even though we have held that appellant has failed to meet the essential requirements necessary to allow it to recover in this bill of review proceeding, we have carefully examined the three contentions advanced by appellant and find the same entirely lacking in merit. Appellant's contention that the intervener James O. Calvin, d/b/a Mid-West Meat Company, is not a proper party to this proceeding is overruled. The record reveals that the...