Duke v. Gilbreath

• Citation: 2 S.W.2d 324
• Decision Date: 09 December 1927
• Docket Number: (No. 419.)
• Parties: DUKE v. GILBREATH et al.
• Court: Court of Appeals of Texas

2 S.W.2d 324

DUKE v. GILBREATH et al.

(No. 419.)

Court of Civil Appeals of Texas. Eastland.

December 9, 1927.

Rehearing Denied February 3, 1928.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Suit by Joe N. Duke against J. T. Gilbreath and others to annul a judgment. From an order denying a temporary injunction and a judgment of dismissal, plaintiff appeals. Affirmed, and temporary injunction issued by the appellate court dissolved.

Ralph D. Pittman, of Wichita Falls, Callaway & Callaway, of Comanche, Scott, Brelsford, McCarty & Brelsford, of Eastland, and Bonner, Bonner & Fryer, of Wichita Falls (Wm. N. Bonner, of Wichita Falls, of counsel), for appellant.

Grisham Bros., of Eastland, for appellees.

PANNILL, C. J.

The points presented for decision can probably be best understood from a detailed statement of the proceedings leading up to the judgment appealed from, which last named is a judgment denying relief sought by appellant in the form of a bill of review from the obligations of a prior judgment against him. The matters disclosed by the record are: That on December 14, 1925, a personal judgment was entered in the district court of Eastland county against appellant for the sum of $8,041.95, with interest. Execution issued on this judgment to Comanche county and appellant thereupon brought this suit in the district court of said county last named to annul the judgment on which the execution had issued. Temporary injunction was ordered by the judge of the district court of Comanche county. The parties to that suit, as well as in the present proceeding, were appellant, as plaintiff, Clark Cunningham, and E. Cunningham, in whose favor the judgment was rendered against appellant, together with appellee Gilbreath, the sheriff (in whose hands execution was), as defendants. In the Comanche county district court the defendants just named filed a motion to dissolve the injunction and to transfer the cause to the district court of Eastland county. The motion to transfer was sustained and after the transfer the district court of Eastland county set the motion to dissolve for hearing for July 18, 1927. On this date the parties appeared and the following judgment was entered, to wit:

After giving the style and number of the cause:

"On this July 18, 1927, came on to be heard the above styled and numbered cause, said cause coming on to be heard upon motion of E. Cunningham and Clark Cunningham to dissolve the injunction heretofore granted by the district judge of the Fifty-Second district, and which injunction was returned to this court; the movants Clark Cunningham and E. Cunningham announced that they would not contest the right of the plaintiff, J. N. Duke, to designate out of any of his lands in Comanche county 200 acres. It is therefore ordered that the following land which the said J. N. Duke announces that he will designate as his homestead be and the same is hereby adjudged to be the homestead of the said J. N. Duke, free from the execution enjoined in this cause: [Here follows a description of the land.]"

"It is further ordered that the motion of E. Cunningham and Clark Cunningham as to all other matters be and the same is hereby sustained; and in this connection the court finds that the citation regularly issued for J. N. Duke in the case of E. Cunningham et al. v. Paramount Oil & Gas Company et al. (No. 8565), and that the said J. N. Duke was a stockholder in said company, and that all remaining portions of the said land described in the execution and as levied on out of said cause is subject to execution and such other processes as the said E. Cunningham and Clark Cunningham may elect under the law on which same may be sold to satisfy the judgment in said cause No. 8565; and the court refuses to set aside the judgment in said cause, and finds against plaintiff, J. N. Duke, on all of his allegations with reference to same, with the exception of the finding above with reference to his homestead rights.

"It is further ordered that the plaintiff, J. N. Duke, pay the cost accrued in this cause Nos. 8278 and 12890, and $15 of the sheriff's cost in the levy that has heretofore been made and enjoined, and that E. Cunningham and Clark Cunningham pay $6 of said sheriff's cost.

"All parties, both plaintiff, J. N. Duke, and the defendants Clark Cunningham and E. Cunningham, being present, and the said J. N. Duke being represented by Messrs. Callaway and Callaway of Comanche, Tex., and the said E. Cunningham and Clark Cunningham being represented by Grisham Bros., of Eastland, Tex., and in open court agreed to the entry of the judgment as herein set forth and said judgment is further entered by the court upon the court's finding of the law and fact in keeping with the judgment, and the same is adopted as the judgment of the court and the same is so ordered."

During the same term at which the above judgment was rendered, and on August 31, 1927, an order was entered permitting appellant to file his first-amended original petition. And in the same cause on September 3, 1927, the last day of the term, there was entered on the minutes another order revoking the one last referred to, because entered through inadvertence.

On September 17, 1927, appellant filed his first-amended original petition seeking to set aside the personal judgment rendered against him December 14, 1925, as shown above. This petition contained every requirement necessary for the relief sought against the judgment sought to be annulled, but made no reference to the judgment of July 18, 1927.

September 26, 1927, was designated by the court as the time for hearing the amended petition of appellant, and appellees, the Cunninghams, then filed their plea in abatement, pleading the judgment of July 18, 1927, in bar of the amended petition. Appellant replied by supplemental petition and for the first time attacked the judgment of July 18th. The grounds of invalidity asserted against the decree last named was that it was not final, entered without the consent of appellant, and against his express instructions to his counsel, and without evidence. The plea in abatement was sustained and appellant's amended petition dismissed, resulting in this appeal.

Upon original application made to this court, a temporary writ of injunction was issued here, restraining the sale of the property of appellant levied upon, pending a hearing in this court of his appeal from the order of the district court denying him a temporary injunction. The restraining order was granted here under the authority of Gibbons v. Ross (Tex. Civ. App.) 167 S. W. 17; Bird v. Alexander (Tex. Civ. App.) 288 S. W. 606; Cleveland v. Ward (Tex. Sup.) 285 S. W. 1063; Genitempo v. Anderson (Tex. Civ. App.) 245 S. W. 270; Texas Farm Bureau Cotton Ass'n v. Lennox et al. (Tex. Sup.) 297 S. W. 743.

The record exceeds the ordinary one in volume, and, as in all cases where a previous decree is attacked, the facts are more or less involved and the pleadings lengthy. In this case the plaintiff's petition with the exhibits exceeds 100 pages of the transcript. A large portion of the voluminous recitals of the petition are taken up in showing that appellant, Duke, had a meritorious defense to the suit brought against him by the appellees Cunningham, and presenting an excuse as to why he did not answer that suit, and also in showing that the citation issued and served upon him was invalid. It must be conceded that appellant has made a very strong case with respect to his meritorious defense, and alleges a state of facts which show that there was not even an issue raising the question of his liability. It also appears he presented a valid excuse for not answering the suit against him and raised an issue of fact as to the validity of the citation served upon him, but conceding that he was not in fact liable to the Cunninghams on the claim they asserted against him, and that he presents a valid excuse for not answering that claim in court, and that the citation served upon him was so defective as not to require him to answer plaintiff's petition, yet there remains the fact that in this suit brought by him to set aside the judgment rendered that a decree was entered when he was in court and represented by counsel, which we believe, as will be hereinafter more fully shown, fully disposed of his suit to set aside the judgment and that this decree, if not vacated, is a bar to the further prosecution of the suit to set aside the judgment in the original suit in which judgment against the appellant was entered.

As has already been stated, the appellant's amended petition made no reference to the judgment of July 18th. That judgment was pleaded in bar of his suit. By supplemental petition, and by supplemental petition only, was the judgment of July 18th attacked, and under the authorities the attack, being by supplemental petition, is collateral. It is well settled that in a collateral attack on a judgment its recitals cannot be contradicted by evidence aliunde the record. The decree dated July 18th purports to have been rendered upon an agreement made by appellant in person, together with his attorneys and ...