Anderson v. Zorn

• Court: Texas Court of Appeals
• Writing for the Court: James
• Citation: Anderson v. Zorn, 131 S.W. 835, 62 Tex.Civ.App. 547 (Tex. App. 1910)
• Decision Date: 02 November 1910
• Parties: ANDERSON v. ZORN et al.

131 S.W. 835

ANDERSON v. ZORN et al.

Court of Civil Appeals of Texas.

November 2, 1910.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Jacob Zorn against Christian Anderson and others. From a judgment for plaintiff against the defendant named, he appeals. Reversed and rendered.

A. C. Van Velzer, for appellant. J. A. Gillette, for appellees.

JAMES, C. J.

This suit was brought by Jacob Zorn against Christian Anderson, J. A. Wynne, T. L. Railey, J. B. Cochran, H. C. House, E. A. Hudson, and T. Rebeker. The petition, in substance, alleged: That defendant Railey was constable with J. B. Cochran, H. C. House, and E. A. Hudson as sureties on his official bond. That Anderson, on January 13, 1908, orally leased to plaintiff Zorn the S.½ of lot 7, block 239, Baker's addition to the city of Houston, containing two rooms, for the term of one year beginning January 13, 1908, the agreed rental being $8 per month. That plaintiff had a butcher's shop in the front room and lived in the back room. That plaintiff paid rent at the end of each month of January and February, and notified Anderson during the months of March and April that plaintiff had the rent for said months for him, and that he should come to plaintiff's butcher shop and get his money, but, notwithstanding said rent was payable at said shop and Anderson bound to go there to receive it, Anderson refused to do so, because he was then preparing to enter into a conspiracy with the defendants Wynne and Rebeker to dispossess plaintiff of the premises, alleging the facts and circumstances on which plaintiff relied to evidence the conspiracy. That, in furtherance of said conspiracy with Rebeker and Wynne, the said Anderson instituted a suit of forcible detainer in justice's court, precinct No. 1, against plaintiff, entitled J. A. Wynne, Agent, v. John Doe Zorn, to recover possession of said premises, but that prior to this and according to the conspiracy Anderson notified plaintiff in writing on March 5, 1908, that from March 15, 1908, the rent would be $50 a month, payable in advance on March 15th, and on the 15th of each month thereafter, during the time plaintiff continued to use it. That said forcible detainer suit was filed on April 16, 1908, against John Doe Zoan, or John Doe Zaan, upon which citation was issued to John Doe Zann, and on April 23, 1908, in said justice's court the said Anderson, acting through his said agent, Wynne, who aided and abetted Anderson in his unlawful and malicious conspiracy and acting for himself, as well as for Anderson, and in furtherance of said conspiracy took judgment against J. A. Zoan, or J. A. Zorn, or J. A. Zaan by default for the recovery of the possession, and writ of restitution, and that such writ was executed on May 1, 1908, by a deputy constable under instructions from said Railey, Anderson, Rebeker and Wynne, but before executing same required for his principal an indemnity bond of Anderson and Wynne, which was executed by Anderson and Wynne, and plaintiff was dispossessed to his damage, which damages, actual, $2,836, and exemplary, $2,000, were stated in detail.

The petition alleged: That plaintiff's name is Jacob Zorn and not J. A. Zoin, nor J. A. Zoan, nor John Doe Zoan, nor John Doe Zaan, and is now, and had been for many years before the filing of said suit, known to defendants and to the officers of Harris county, and that his name could easily have been found out, and that said judgment was void as to plaintiff and will not support a writ of restitution against him. That said judgment and writ were void because the citation, which was served on John Doe Zoan or John D. Zoan in said cause, did not contain the file number of the cause as required by law. That the judgment was void, that plaintiff Zorn did not appear in the proceeding in person or by attorney, that the facts attending the disposition of the case were that, before plaintiff in that cause announced ready, the justice asked Wynne if the facts contained in the complaint were true or not, to which he answered "Yes." The counsel for the plaintiff announced ready for trial, and placed a brother of this plaintiff, Zorn, on the stand, and examined him long enough to learn that he was not the defendant, and then excused him and announced to the justice that he would take judgment by default and this was done and nothing else was done; that no notice demanding the premises was introduced, no evidence of any rental contract, no evidence that Anderson or Wynne were the owners of the premises, and as such had made any contract with this plaintiff for the same, no evidence to show that the contract had expired, and that it had been breached. That the justice, through ignorance or mistake, believing the method pursued by him in rendering judgment to be the correct one, reciting that the cause was tried on its merits, made the judgment recite that the plaintiff and defendant appeared and announced ready for trial, waived a jury and submitted the cause to the court, and adjudging that the plaintiff in said cause was entitled to the possession of the land as against J. A. Zoan, or J. A. Zaan, and awarding a writ of restitution, wherefore said judgment is null and void against this plaintiff as well as the proceedings had thereunder against this plaintiff and that the writ is void, because it has no valid judgment to support it.

Then occurs this allegation attacking the judgment for fraud, which being brief we copy: "Plaintiff further shows that the only species of fraud charged herein against said justice of the peace is one of law, in this that in the manner and haste in which they tried said cause they were guilty of ignorance, haste, and mistake, which in law amounts to legal fraud, and entitles this plaintiff to be relieved from the effects thereof. And in addition to said legal fraud the judgment is null and void against this plaintiff and will not support the writ of restitution herein mentioned because of the actual and legal frauds perpetrated by said Anderson, Wynne, and Rebeker as fully set out in this petition, and that by reason of their fraud upon this plaintiff and said court in securing said judgment and said writ of restitution they did fraudulently assist in recovering the judgment and the issuance of said writ of restitution."

The answer of defendant Anderson was the general issue, and he also alleged that the suit was filed in the justice's court by J. A. Wynne as agent for him against John Doe Zorn, wherein judgment was rendered in his favor for the restitution of the premises, and that under a writ of possession issued on said judgment said Zorn was ousted about May 1, 1908 and possession delivered to said Anderson. That said suit was brought against John Doe Zorn, whose real name was unknown when the suit was filed and upon the trial his name was shown to be J. A. Zorn, who is plaintiff in this suit. That said suit was the statutory action of unlawful detainer by reason of default on the part of Zorn to pay rentals due from him to said Anderson. The issue in said suit was the right of possession of said premises. That plaintiff herein was duly served with citation in said suit and the judgment therein is pleaded in bar of the right of said Zorn to maintain this action for damages for the ouster of said Zorn by said suit and the writ issued thereunder. That plaintiff is estopped from maintaining this suit for...