Edwards Feed Mill v. Johnson

• Decision Date: 19 February 1958
• Docket Number: No. A-6427,A-6427
• Citation: 158 Tex. 313,311 S.W.2d 232
• Court: Texas Supreme Court
• Parties: EDWARDS FEED MILL, Inc., Petitioner, v. William Warren JOHNSON, Respondent.

Page 232

311 S.W.2d 232

158 Tex. 313

EDWARDS FEED MILL, Inc., Petitioner, v. William Warren JOHNSON, Respondent.

No. A-6427.

Supreme Court of Texas.

Feb. 19, 1958.

Rehearing Denied April 9, 1958.

Wolff & Wolff, San Antonio, for petitioner.

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

GREENHILL, Justice.

The controlling question in this case relates to the asserted voidness of a default judgment rendered against respondent, William Warren Johnson, by the District Court of Bexar County, Texas, on February 27, 1953, in Cause No. F-54,353. The District Court and the Court of Civil Appeals (by a divided court) have held that the judgment was void. We are not in agreement with such holding, and accordingly the judgments of the courts below will be reversed and the cause remanded to the district court.

The undisputed facts are fully set out in the majority opinion of the Court of Civil Appeals. 302 S.W.2d 151. We shall confine our statement to the essentials which bear directly upon the question of validity of the default judgment.

On April 1, 1949, petitioner, Edwards Feed Mill, Inc., as plaintiff brought suit against William Warren Johnson (respondent here) and his son, Woodson W. Johnson. They were sued as partners for feed sold and delivered to them. Neither the fact of partnership, the sale of the feed, or the receipt of the goods was or is denied. The suit was based upon two counts, a promissory note and a verified account. We are concerned here only with the action on the promissory note. William Warren Johnson, although duly served with citation, filed no answer. Woodson W. Johnson filed an answer but the suit as to him was subsequently dismissed and a final judgment upon both the promissory note and the sworn account was rendered against the defaulting defendant, William Warren Johnson, on February 27, 1953. No appeal was attempted. More than two years later, on May 16, 1955, William Warren Johnson filed a suit (Cause No. F- 93,721) attacking that portion of the judgment based upon the promissory note upon the ground that it was void. The trial court sustained this position and rendered a summary judgment which left the judgment in Cause No. F-54,353 in full force and effect as to the sworn account but annulled the portion thereof based upon the promissory note.

In affirming this judgment, the majority of the Court of Civil Appeals recognized that: 'Default judgments which are subject to be set aside for lack of pleadings 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.' It concluded that the 'petition in said Cause No. F-54,353, from the allegations therein contained, wholly negatived the existence of a cause of action against William Warren Johnson on said note.'

In Smith v. Pegram, 80 S.W.2d 354, 356, the Amarillo Court of Civil Appeals quoted with approval Ritch v. Jarvis, Tex.Civ.App., 64 S.W.2d 831, setting out the following rule:

'A judgment not based upon any pleadings is void. Hart v. Hunter, 52 Tex.Civ.App. 75, 114 S.W. 882. But there is difference between no pleadings, or a petition which from the facts alleged shows affirmatively that plaintiff has no cause of action upon the facts stated, and a petition which is merely lacking in allegations of fact sufficiently to fully state the cause of action. In the latter case, it may be subject to a general demurrer and would be reversed upon appeal from an adverse ruling of the trial court. Yet the same petition may be sufficient to prevent a judgment by default from being void; for, if it states the nature of the cause of action determined by the judgment and is of a class over which the court has potential jurisdiction, it invokes the active jurisdiction of the court, and its sufficiency in regard to the fullness of facts is a matter for determination by the trial judge entering the judgment. An error committed by the trial court in its deliberation upon the sufficiency of the petition in this respect would not in legal effect be different from an error committed in rendering the judgment upon insufficient facts proven, and would not render the judgment void. Freeman on Judgments (5th Ed.) vol. 1, § 365, p. 765. However, if the pleadings do not invoke the jurisdiction of the court upon the subject matter determined by the judgment, it is void. Sandoval v. Rosser, Tex.Civ.App., 26 S.W. 930; Morgan v. Davis, Tex.Civ.App., 292 S.W. 610.'

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