Carson v. Taylor
| Decision Date | 23 April 1924 |
| Docket Number | (No. 2315.) |
| Citation | 261 S.W. 824 |
| Parties | CARSON v. TAYLOR. |
| Court | Texas Court of Appeals |
Appeal from Wichita County Court; Guy Rogers, Judge.
Scire facias by Charles Carson to revive a judgment against C. M. Taylor. From an order setting original judgment aside, plaintiff appeals. Appeal dismissed.
See, also, 238 S. W. 261.
Martin, Oneal & Allred, of Wichita Falls, for appellant.
Carrigan, Montgomery, Britain, Morgan & King, of Wichita Falls, for appellee.
On December 22, 1920, Charles Carson recovered a default judgment against C. M. Taylor, in the county court of Wichita county, in an action instituted by Carson against Taylor and three other defendants. All the defendants except Taylor filed answers, and upon a trial judgment was rendered in their favor, but against Taylor by default. The judgment recites service of process upon Taylor. No execution was issued against Taylor for more than 12 months, and this is a scire facias proceeding to revive the judgment against Taylor, instituted January 12, 1923. February 19, 1923, Taylor answered the application for scire facias. alleging that no citation had ever been issued or served upon him prior to the rendition of the judgment sought to be revived; that he had never entered an appearance in said cause, nor authorized any one to so enter an appearance for him, and that the court had no jurisdiction of his person, and the judgment was therefore void. It is settled law that a judgment by default, entered without service of process, is absolutely void. 16 Michie's Digest, pp. 22-25. His answer was a direct attack upon the judgment, and the validity of such judgment could be settled by such a proceeding in the court which rendered it. Waggoner v. Knight (Tex. Com. App.) 231 S. W. 357; Knight v. Waggoner (Tex. Civ. App.) 214 S. W. 690, dissenting opinion. While, as stated, the original judgment recites service upon Taylor, the trial court heard evidence upon the issue, and held that there was in fact no service upon or appearance by him, and by an order entered set the original judgment aside. This appeal is from that order. It is insisted that, since the judgment upon its face recited service and imported verity, the court was without authority to hear evidence showing a want of service and to set the judgment aside. The expression "face of the record" in proceedings of this kind attacking judgments includes the entire record in the case, and is not limited to what the judgment itself recites. State v. Haines, 51 La. Ann. 731, 25 South. 372, 44 L. R. A. 837; Cotton v. Rea, 106 Tex. 220, 163 S. W. 2; San Bernardo Townsite Co. v. Hocker (Tex. Civ. App.) 176 S. W. 664; Moore v. Vogt (Tex. Civ. App.) 127 S. W. 234; Ketelsen & Degetau v. Pratt Bros. & Seay (Tex. Civ. App.) 100 S. W. 1172; Taylor v. Hustead & Tucker (Tex. Com. App.) 257 S. W. 232. Where a judgment is shown upon the face of the record to be absolutely void, defendant is entitled to have the same set aside without the necessity of showing a meritorious defense. Fox v. Robbins (Tex. Civ. App.) 62 S. W. 815; Harrison v. Lokey, 26 Tex. Civ. App. 404, 63 S. W. 1030; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Schneider v. Sellers, 25 Tex. Civ. App. 226, 61 S. W. 541.
We have discussed the contentions above in deference to the earnest insistence of counsel in their briefs, but, because...
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City of Fort Worth v. Gause, 1652 - 6748.
...and has and should have no application when the judgment is on the face of the record void or fundamentally erroneous. Carson v. Taylor (Tex.Civ.App.) 261 S.W. 824; 25 Tex.Jur. § 174, p. 572. It has often been held that a default judgment rendered after service of a defective citation may b......
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Wilkinson v. Owens
...for want of jurisdiction. 21 Tex. Jur. § 9, p. 214, and cases there cited. Generally a judgment without service is void. Carson v. Taylor (Tex. Civ. App.) 261 S. W. 824; Levy v. Roper, 113 Tex. 356, 256 S. W. 251. Quoting the rule, as correctly given therein, from Newman v. Mackey, 37 Tex. ......
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Claunch v. Entrekin
...that which is recited in the decree or judgment. See Williams et al. v. Trammell et al., 230 N.C. 575, 55 S.E.2d 81; Carson v. Taylor, Tex.Civ.App., 261 S.W. 824. In this case the entire record includes the petition for adoption, the report of the State Department of Pensions and Security m......
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Mueller v. Banks
... ... McDonald, 107 Tex. 139, 175 S.W. 676; Ramos v. Rodriguez, Tex.Civ.App., 304 S.W.2d 274; Pierson v. Smith, Tex.Civ.App., 292 S.W.2d 689; Carson v. Taylor, Tex.Civ.App., ... 261 S.W. 824; Litton v. Waters, Tex.Civ.App., 161 S.W.2d 1095 ... Appellant also attacks the judgment ... ...