Edwards Feed Mill, Inc. v. Johnson

• Decision Date: 24 April 1957
• Docket Number: No. 13138,13138
• Citation: 302 S.W.2d 151
• Parties: EDWARDS FEED MILL, Inc., Appellant, v. William Warren JOHNSON, Appellee.
• Court: Texas Court of Appeals

Page 151

302 S.W.2d 151

EDWARDS FEED MILL, Inc., Appellant, v. William Warren JOHNSON, Appellee.

No. 13138.

Court of Civil Appeals of Texas, San Antonio.

April 24, 1957.

Rehearing Denied May 22, 1957.

Wolff & Wolff, San Antonio, for appellant.

Stahl & Sohn, H. Kyle Seale, San Antonio, for appellee.

BARROW, Justice.

This is a suit filed by William Warren Johnson against Edwards Feed Mill, Inc., in the District Court of Bexar County, being Cause No. F-93,721, to set aside only those parts of a default judgment based upon a promissory note sued on in Cause No. F-54,353, said note having been signed not by plaintiff but by a third party, Woodson W. Johnson. The defendant, Edwards Feed Mill, Inc., answered said suit and thereafter plaintiff filed a motion for summary judgment, setting forth that as a matter of law he was entitled to judgment setting aside said former judgment in part, and, therefore, a summary judgment was proper in the case. The trial court granted plaintiff's motion and entered summary judgment cancelling and annulling the former judgment, insofar as Edwards Feed Mill, Inc., recovered upon the promissory note sued on. From the judgment in Cause No. F-93,721 this appeal is prosecuted.

On the 1st day of August, 1949, appellant, as plaintiff, instituted a suit against appellee, as defendant, and against appellee's son, Woodson W. Johnson, in Cause No. F-54,353, in the 45th District Court of Bexar County, Texas. In such petition the appellee herein (defendant therein) is called Warren W. Johnson. However, there is no dispute between the parties as to the fact that Warren W. Johnson and William Warren Johnson, appellee herein, are one and the same person. In that suit the appellant sued appellee and Woodson W. Johnson on a sworn account and on a promissory note, and Woodson filed an answer to such lawsuit through his attorney. After waiting two years, and appellee not answering, appellant took a default judgment against appellee on the 11th day of April, 1951, both upon the sworn account and the promissory note. Almost two years again elapsed, then appellant dismissed its cause of action against Woodson W. Johnson only. The order of dismissal was signed on February 5, 1953, and then the judgment against appellee was made final, both as to the sworn account and as to the promissory note, on the 27th day of February, 1953. On the 16th day of May, 1955, appellee filed the present suit, setting out the instruments above referred to, and admitting the validity of the judgment as to the sworn account, but contesting its validity as to him on the promissory note. Appellee contends that the record in Cause No. F-54,353, aforesaid, was void on its face, and therefore such judgment was void, insofar as it was against him on said note. Appellant answered such suit excepting to the pleadings, pleading a general denial, laches, limitations and specially that the judgment in the prior suit was valid and still remained in full force and effect. The effect of the judgment rendered by the trial court in Cause No. F-93,721 was to leave the judgment in Cause No. F-54,353 in full force as to the sworn account, but voiding and annulling it as to appellee insofar as the judgment on the promissory note is concerned.

Appellant, Edwards Feed Mill, Inc., as plaintiff in Cause No. F-54,353, asserted, first, that the appellee, William Warren Johnson, and his son Woodson were on the dates of the transactions alleged, partners in the dairy business and were buying animal feed from the plaintiff. Then, in paragraph two of said petition, the plaintiff, appellant here, alleged as follows:

'On the 29th day of September, 1948, defendant, Woodson W. Johnson, executed and delivered to plaintiff his promissory note bearing date on such day and year and thereby promised plaintiff to pay it, or its order, thirty (30) days after date, the sum of Four Thousand Dollars ($4,000.00) with ten per cent (10%) per annum interest thereon from maturity until paid and ten per cent (10%) additional as attorney's fees upon principal and interest if placed in the hands of an attorney for collection or suit should be brought thereon after maturity, which note reads as follows:

"$4,000.00

San Antonio, Texas

'September 29th, 1949

'Thirty days after date, I, we, or either of us, as principals, promise to pay to the order of Edwards Feed Mill, Inc., of San Antonio, at its office in San Antonio, Texas, Four Thousand and 00/100 Dollars in lawful money of the United States of America, for value received, with interest at ten per cent, per annum from maturity until paid, and ten per cent additional on amount of principal and interest unpaid, as attorney's fees, if placed in the hands of an attorney for collection or in the event judicial proceedings are instituted to enforce the collection thereof. Each and every signer, endorser and/or surety hereon and guarantor hereof hereby expressly waives presentment for payment, notice of non-payment, protest, notice of protest, and diligence in the collection hereof and/or any security or collateral hereto, if any, and agree that this note may be continued, in whole or part, from time to time, without notice.

'(Signed) W. W. Johnson."

In paragraph three of said petition, appellant alleged payment of $500 on said note by the son, Woodson, leaving a balance of $3,500 plus interest, etc. The petition then alleged that said defendant Woodson W. Johnson promised that he would pay the balance of said note 'within the next few days,' and further alleged that appellant made many demands of the defendant and defendant refused to pay said note. Paragraph four alleged that repeated demands had been made by appellant upon defendants to pay such note, interest and attorney's fees, and defendants have failed and refused, and still fail and refuse, etc., which completes the entire allegation of said petition with reference to said note. Paragraph five begins the suit upon the sworn account and alleges that, at the special instance and request of both defendants, appellant sold and delivered to both defendants as buyers the merchandise claimed in said petition. The question for decision in this case is: Was the appellant's petition in Cause No. F-54,353, sufficient to invoke the jurisdiction of the court upon said note as against the appellee, or, on the other hand, was the petition merely lacking in allegations as to the facts to fully state the cause of action? It is contended by appellant that the petition was subject only to what was formerly known as a general demurrer, and the objection could only be raised by exception. This contention cannot be sustained. The petition showed affirmatively that the note was not the obligation of appellee.

A judgment must be supported by the pleadings. A court's power to give judgment is limited by the pleadings of the parties and, broadly speaking, it may not pass upon matters not submitted for determination. It follows that a judgment unsupported by any pleading is absolutely void and subject to collateral attack. The same result follows if the judgment goes so far beyond the issues made by the pleadings as to constitute a usurpation of power. McCamant v. McCamant, Tex.Civ.App., 187 S.W. 1096; Hart v. Hunter, 52 Tex.Civ.App. 75, 114 S.W. 882, 886; 25 Tex.Jur. 818, Sec. 313.

In Hart v. Hunter, supra, the Court said

'It would appear upon sound reason that a judgment rendered where no case has been stated, or attempted to be stated, is as much a judgment upon a matter coram non judice, whatever may be the jurisdiction of the court rendering it, as a judgment upon a case, however perfectly stated, before a court not authorized to hear and determine it. In such a case as where the record affirmatively shows a want of jurisdiction over the parties or subject-matter, the judgment ought, we think, to be treated as a nullity, both on direct and collateral attack.'

The general rule is that a judgment passes beyond the control of the trial court at the expiration of the term when entered. 15 R.C.L. 690; Notes to 81 A.L.R. 300. In Texas, these methods of attacking judgments of the character found here are apparently recognized, viz.:

(1) By the statutory method of appeal or writ of error.

(2) By a proceeding in the nature of a bill of review.

(3) By a direct attack, having for its general object a finding that such judgment was void when entered. Smith v. Pegram, Tex.Civ.App., 80 S.W.2d 354, writ refused.

It is not contended that this case comes within either of the first two classes, but appellee contends that it comes within the third class, in that it affirmatively appears from appellant's petition in Cause No. F-54,353, that it had no cause of action against appellee on the $4,000 note sued upon.

It has been the consistent holding of the courts of this State that, even though the court may have jurisdiction over the class of case sought to be adjudicated as well as the parties, in order for the judgment to be valid the pleading upon which it is bottomed must state a cause of action upon the particular subject matter upon which it is based. Default judgments which are subject to be set aside for lack of pleading or on faulty pleading, fall into two classes, first, those which are merely lacking in allegations of fact sufficient to fully state a cause of action (known as the general demurrer class), and can only be attacked by direct appeal or writ of error, and, second, those which, from the facts alleged, affirmatively show that plaintiff has no cause of action upon the facts stated. In this latter case the judgment is void and can be attacked by subsequent suit. McCamant v. McCamant, Tex.Civ.App., 187 S.W. 1096; Sandoval v. Rosser, Tex.Civ.App., 26 S.W. 930; Morgan v. Davis, Tex.Civ.App., 292 S.W. 610; Ritch v. Jarvis, Tex.Civ.App., 64 S.W.2d 831; Smith v. Pegram, Tex.Civ.App., 80 S.W.2d 354. Lapse of time or laches will not affect the right to vacate the default...