Deen v. Deen

• Decision Date: 21 November 1975
• Docket Number: No. 17653,17653
• Citation: 530 S.W.2d 913
• Parties: Betty L. DEEN, Appellant, v. F. Edgar DEEN, Jr., Appellee.
• Court: Texas Court of Appeals

Page 913

530 S.W.2d 913

Betty L. DEEN, Appellant, v. F. Edgar DEEN, Jr., Appellee.

No. 17653.

Court of Civil Appeals of Texas,

Fort Worth.

Nov. 21, 1975.

Rehearing Denied Dec. 19, 1975.

C. Coit Mock, Fort Worth, for appellant.

Fillmore, Lambert, Farabee & Purtle and Clyde Fillmore, Wichita Falls, for appellee.

OPINION

MASSEY, Chief Justice.

Betty L. Deen, as plaintiff, brought suit against her husband (or former husband) Edgar Deen, Jr., in direct attack upon a prior judgment of divorce rendered against her and a favor of her husband. The number of the suit by which she attacked the former judgment was No. 65,544--B. The number of the suit in which the prior divorce decree had been rendered was No. 94,536--B. Both cases were filed in the same court.

The divorce suit was filed June 22, 1973. As part of the record in the proceedings in such case a 'waiver' of service of citation and voluntary appearance of the defendant wife was filed. However, this instrument showed on its face that it had been signed on June 21, 1973, the day before the suit was filed. Judgment granting a divorce to the husband was rendered on August 22, 1973, reciting that 'the Defendant duly waived issuance and service of citation and wholly made default herein'. The record affirmatively shows that she was not otherwise brought before the court.

Antecedent history relative to events in the case appears by opinions: Deen v. Kirk, 508 S.W.2d 70 (Tex.Sup.1974); Deen v. Deen, 511 S.W.2d 612 (Fort Worth, Tex.Civ.App., 1974, no writ history). Note by the prior opinion of this Court that an order dismissing the wife's suit to set aside the antecedent divorce decree had been entered by the trial court, and we reversed that order of dismissal and remanded the case for trial.

To be observed is the fact that there was never entry of any order consolidating Cause No. 94,536--B (the divorce case) with Cause No. 95,544--B (the direct attack upon the divorce decree).

Promptly after mandate of this Court on the prior appeal certifying remand for trial of Cause No. 95,544--B, there was trial below. Judgment was rendered denying the wife's prayer that the divorce decree in Cause No. 94,536--B be vacated. She appealed.

Judgment reversed. Judgment rendered vacating antecedent judgment of divorce.

T.R.C.P. 329b, 'District and County Court Cases', provides in part: 'After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.' (Long before the 1941 adoption of Texas Rules of Civil Procedure the substantially identical provision was a part of our rules of practice. See V.A.T.S., Art. 2092(30). The provision has steadily persisted since 1923.)

V.A.T.S. 5529, 'All other actions barred, when' recites: 'Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.'

There is no doubt that the wife's suit, by No. 95,544--B, was a direct attack on the judgment rendered in No. 94,536--B. 34 Tex.Jur.2d, p. 234, 'Judgments', Sec. 289, 'Direct attack distinguished--Illustrations'; Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895). Where direct attack against a prior judgment is made in the court which had rendered it the most common instance is plea for equitable relief against the prior judgment by equitable bill of review. This is indicated under the foregoing authority. Pleading and evidence requirements in that character of case almost invariably are that the plaintiff (in the bill of review suit) show (1) meritorious defense to the cause of action 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. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

Over the United States there have been various methods of direct attack upon a prior judgment in the trial court after its purported finality. See 49 C.J.S. Judgments § 286, Nature and Form of Remedy, p. 513.

In Texas, however, where it was necessary to make direct attack on equitable grounds the exclusive method since 1923 has been by bill of review. Not likewise treated have been instances where judgments have been directly attacked because they were void. One example is observed where the attack was made upon the defendant's opposition to a revival of a void judgment purportedly existent. Carson v. Taylor, 261 S.W. 824 (Amarillo, Tex.Civ.App., 1924, no writ history). The case was an instance where there was lack of jurisdiction over the person of the defendant against whom the prior judgment had been rendered because citation had never been issued or served on him. Actually, over the entire country, courts have appeared ready and willing to vacate their own void judgments in any form they have been attacked, especially those exhibited as void 'on the face of the record', the 'judgment roll' itself, including not merely the judgment and pleadings, but also the process whereby presence or absence of jurisdiction might be determined.

It is thought that the intent, by force of which that portion of procedural law quoted from T.R.C.P. 329b appeared to have application, was to eliminate all other methods of direct attack after purported finality of judgment of a trial court, i.e., whether the attack upon the prior judgment was on equitable grounds or was on legal grounds (as where the judgment was demonstrably void 'on the face of the record', for example, of a want of jurisdiction over the defendant). In other words the intent was that in all cases (1) there must be a new suit, (2) in a a newly filed case, (3) in the same court, (4) involving the same parties. In this character of proceeding the 'body' of the case in which the former judgment was rendered is brought before the court for a proper trial as part of the entire proceedings in order that there need not be delay in the trial of such case should the court vacate the prior judgment.

It is not thought that there was intent, as a predicate for such proper trial, to require proof other than that a prior judgment should be decreed void. Rules of equity would clearly be inapplicable where the judgment was 'void' as distinguished from 'avoidable'.

On the instant appeal we consider a case in which the judgment is demonstrably void 'on the face of the record' for want of jurisdiction of the person of the defendant against whom the prior judgment was rendered. Indeed, as we understand the Supreme Court it has already stated that the very judgment under attack is thus void. Deen v. Kirk, 508 S.W.2d 70 (Tex.Sup., 1974).

The case of In Re Armstrong's Adoption (and Armstrong v. Manzo by the U.S. Supreme Court), Infra, served notice in such a case, one in which there was procedure without service of process leading to trail and judgment had been rendered injuriously affecting the rights of (one who should have been) a defendant, that the judgment should be set aside on the ground that the defendant had been denied the due process of the law guaranteed by the United States Constitution. Furthermore, in the opinions in that case there was additional statement made to the effect that there would also be a denial of due process though the defendant was afforded a hearing after judgment, when the trial court still had jurisdiction of the original proceeding, if at such hearing he was required to make any affirmative proof. That which the appellate court was considering involved absence of notice and process on the defendant apparent 'on the face of the record'. It was the observation of the United States Supreme Court in Armstrong that such a defendant's entitlement was to have the slate 'wiped clean', with a new trial held in which he would be compelled to do nothing more than to defend the cause of action asserted against him; specifically, that such a defendant would not be obliged to prove anything affirmatively as a predicate to his entitlement to have judgment set aside. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); In Re Armstrong's Adoption, 394 S.W.2d 552 (El Paso, Tex.Civ.App., 1965, no writ history). On invalidity of the judgment see also cases annotated at 24A Texas Digest, 'Judgment', k485, 'Judgment void on its face in general'.

Of Armstrong we are aware. It is in light thereof that we have stated our views upon a part of the provisions of Rule 329b. It is not thought that such portion of the provisions could be applied in a manner to require a defendant who has suffered the onus of a void judgment, in his direct attack upon it in the trial court which rendered the judgment, to show anything other than that the judgment was void.

The language of T.R.C.P. 329b is not subject to construction other than that the time honored rules governing direct attacks on judgments by equitable bill of review would govern all such proceedings, whether suit is attacked on legal grounds or on equitable grounds, plus a time limitation for bringing suit applicable whether the suit is one at law or in equity. By reason thereof, we conclude that T.R.C.P. 329b does not control in the circumstances of the case under consideration. It is in derogation of the wife's right to due process, her suit being brought at law and not in equity. The rule must be held unconstitutional in its application to this case.

Even if we err yet the wife must be held to have prevailed as a matter of law by rules we deem to have relation to an equity case only. The trial court denied the wife's suit for recited reasons, among which was the finding that she suffered judgment...