Babcock v. Marshall

• Decision Date: 19 April 1899
• Parties: BABCOCK v. MARSHALL.
• Court: Texas Court of Appeals

Page 728

50 S.W. 728

BABCOCK v. MARSHALL.

Court of Civil Appeals of Texas.

April 19, 1899.

Error from district court, Lampasas county; John M. Furman, Judge.

Action by Courtlandt Babcock against E. J. Marshall. Judgment for defendant, and plaintiff brings error. Affirmed.

W. B. Abney and Thomas G. Frost, for plaintiff in error. Matthews & Browning, for defendant in error.

FISHER, C. J.

This is a suit by plaintiff in error against defendant in error on a judgment for $1,014.57, rendered by the circuit court of Cook county, Ill., in favor of plaintiff in error against defendant in error. For answer the defendant in error pleaded that the judgment was procured against him by the fraudulent conduct of the plaintiff in error, in that, after suit was brought in the Illinois court on the claim which was merged into the judgment, and before the judgment was obtained, defendant in error and plaintiff in error agreed upon a full settlement of the matters of litigation then pending, and the defendant in error had fully paid off and discharged the claim upon which the suit was based, and the plaintiff in error, in consideration thereof, then and there agreed to dismiss said suit, and not prosecute it to judgment. This agreement was made about the 17th of January, 1896, as the facts show, in the city of Chicago. Afterwards, about September 1, 1896, the defendant in error returned to his home in Lampasas county, Tex., and on the 3d day of September, 1896, the judgment sued upon was recovered against him. It is also alleged that the defendant in error relied upon the promise and agreement made by plaintiff in error to dismiss the action against him, and therefore he paid no further attention to the suit, and made no defense thereto; that he did not know or hear of the rendition of the judgment until about October 20, 1896, when payment of the judgment was demanded of him. The fraud here alleged is pleaded in bar of the plaintiff's right to recover on the judgment, and, in addition, the defendant asks that the plaintiff be forever restrained and enjoined from enforcing the judgment. There are matters of cross action and reconvention set up in the answer, which it is not necessary to state, in view of the disposition we make of the case, as the defendant in error asks us to consider these questions only in the event we remand the judgment below. These matters are brought to the attention of this court only by cross assignments of defendant in error. Plaintiff in error addressed to the answer certain demurrers, which were overruled, and which will be more fully noticed in the opinion. The trial court rendered judgment to the effect that plaintiff in error take nothing by his suit, and that he be forever enjoined and restrained from enforcing said judgment against defendant in error, by suit or otherwise.

There is evidence in the record which supports the averments of the answer as set out. The effect of the evidence in support of these averments, in our opinion, shows that the judgment was procured by the fraudulent conduct of plaintiff in violation of the agreement to dismiss the suit, and that the failure to do so deprived the defendant of a meritorious defense, and that the defendant could rely upon this agreement, and that from his want of notice that the judgment was obtained he was not negligent in taking steps in the courts of Illinois looking to setting it aside. It is first contended by the plaintiff in error that the court erred in overruling his demurrers to the defendant's answer, because, under section 1 of article 4 of the constitution of the United States, to the effect "that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of other states," the judgment sued upon, rendered by the court in Illinois, was conclusive, and was not subject to attack for fraud in its procurement. If it was an original question before us as one of first impression in this state, we would be inclined to hold that a strictly legal defense of fraud could not be urged to defeat a judgment of a sister state. Renaud v. Abbott, 116 U. S. 277, 6 Sup. Ct. 1194. There are several cases decided by the courts of this state upon this subject, some of which directly, and others inferentially, hold that fraud can be interposed as a defense to the judgment of a sister state, when sued upon here. Norwood v. Cobb, 15 Tex. 501, reaffirmed in 24 Tex. 554; Drinkard v. Ingram, 21 Tex. 653; Chunn v. Gray, 51 Tex. 114; Redus v. Burnett, 59 Tex. 581; Russell v. Butler (Tex. Civ. App.) 47 S. W. 406. As the only Texas case which is opposed to those cited, plaintiff refers us to the case of Miller v. Lovell (Civ. App.) 40 S. W. 835. That was a suit brought in this state upon a judgment rendered by a court of Florida. The court, in affirming the judgment of the trial court, say that there was no error in sustaining demurrers to defendant's answer, because it did not state the specific acts of fraud in obtaining the judgment sued upon. This was the first conclusion of law of that court, and by a second conclusion it disposed of the answer in part filed in the case upon the ground that, the judgment being one of a sister state, the defendant could not, by plea in reconvention, predicate an action of damages based upon its recovery, no facts being alleged that would affect its validity in the state where rendered. The first conclusion of the court seems to strongly intimate that, if specific acts of fraud had been alleged, the answer would have been good. It is true, the supreme court refused a writ of error in the case, but it may have been on the first ground stated. If it was true, as there stated, that the acts constituting the fraud were not alleged, the defendant had no standing in court, and the demurrer was properly sustained, for the rule is elementary that, when relief is sought on the ground that the opposite party has been guilty of fraud, the conduct or acts relied upon as constituting the fraud must be specifically alleged. From this it seems that the only point relied upon in that case was the insufficiency of the answer to allege facts showing fraud. If we felt constrained to follow the decisions of the courts of this state, to the effect that fraud as a strictly legal defense may be charged against the plaintiff to defeat a recovery in a suit based upon the judgment of a sister state, it would not be necessary that we should so declare ourselves in this case, because, in our opinion, the judgment of the trial court may be affirmed upon other grounds. In addition to the assertion of fraud in procuring the judgment as a strictly legal defense, the defendant in error urged the same state of facts as a basis for equitable relief against the judgment and the enforcement of the same by plaintiff in error. It is a general principle of equity, which may be said to exist in nearly, if not, all of the states of the Union, that a judgment at law, which was procured by the fraudulent conduct of the plaintiff, which had the effect to deprive the defendant of a meritorious legal defense which he was not guilty of negligence in urging, may be enjoined, and the plaintiff restrained from enforcing it. Embry v. Palmer, 107 U. S. 11, 2 Sup. Ct. 25; 2 High, Inj. (3d Ed.) §§ 190-208, and cases hereafter cited. The statute of the United States which gives effect to the provision of the constitution that declares that full faith and credit shall be given in each state to the public records, etc., of any other state, uses this language: "And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state whence the said records are or shall be taken." Rev. St. U. S. § 905. In Embry v. Palmer, 107 U. S. 10, 2 Sup. Ct. 31, which was an action to restrain the enforcement of a judgment of the District of Columbia, when sued upon in Connecticut, on the ground of fraud in procuring the...