Brown v. Clippenger

• Decision Date: 21 November 1923
• Docket Number: (No. 3834.)
• Citation: 256 S.W. 254
• Parties: BROWN et al. v. CLIPPENGER.
• Court: Texas Supreme Court

256 S.W. 254

BROWN et al. v. CLIPPENGER.

(No. 3834.)

Supreme Court of Texas.

November 21, 1923.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Sallie Clippenger against R. A. Brown and others, wherein defendant R. A. Brown filed a cross-action. Judgment for plaintiff was affirmed by the Court of Civil Appeals (240 S. W. 979), and defendants bring error. Affirmed.

A. M. Hill and B. L. Aycock, both of Kountze, for plaintiffs in error.

J. M. Conley, of Beaumont, for defendant in error.

GREENWOOD, J.

Defendant in error brought an action of trespass to try the title to 200 acres of land in Hardin county against plaintiff in error R. A. Brown and others.

Plaintiff in error R. A. Brown, among other pleadings, filed a cross-action, averring that defendant in error deraigned title through a judgment for the 200 acres of land in her favor against him, which was rendered in 1910 by the district court of Hardin county; that said judgment recited facts which gave the court jurisdiction to render the judgment, but that in fact no citation was served on him in the cause wherein the judgment was rendered, and that he did not appear therein nor authorize any one to appear in his behalf, and that he had no knowledge of the judgment until advised thereof by his attorney subsequent to the institution of this suit. Plaintiff in error R. A. Brown prayed that the former judgment be set aside as void for the want of jurisdiction in the court to render it, and for general relief, etc. No attempt was made to allege a defense by Brown to the former suit. The district court sustained a demurrer to the cross-action, seeking to vacate the former judgment for defendant in error, because of Brown's failure to aver a meritorious defense to the first suit, and, on his refusal to cure the defect, dismissed the cross-action. The trial in the district court resulted in a judgment for defendant in error, which was affirmed on appeal. 240 S. W. 979.

The writ of error was granted because of the doubt expressed in Kern Barber Supply Co. v. Freeze, 96 Tex. 516, 74 S. W. 303, whether the rule that a party seeking equitable relief to prevent the enforcement of a judgment against him, not void on its face, must show a meritorious defense to the cause of action on which the judgment was based, was properly applied to actions to set aside apparently valid judgments for want of jurisdiction of the person.

The judgment which Brown sought to vacate recited facts which sustained the court's jurisdiction. It could not therefore be collaterally attacked with success in the courts of this state. Levy v. Roper, 113 Tex. ___, 256 S. W. 251. If it was the correct judgment on the merits, a direct proceeding to vacate it would not have had a different result. For the party recovering a judgment must be made a party to a proceeding for its vacation, with the right to enforce any subsisting obligation of the complainant on which the judgment was predicated. If the complainant was truly bound to render to the plaintiff in the...