Forney v. Jorrie

• Decision Date: 08 May 1974
• Docket Number: No. 15300,15300
• Citation: 511 S.W.2d 379
• Parties: William H. FORNEY, Appellant, v. Samuel M. JORRIE et al., Appellees.
• Court: Texas Court of Appeals

Page 379

511 S.W.2d 379

William H. FORNEY, Appellant, v. Samuel M. JORRIE et al., Appellees.

No. 15300.

Court of Civil Appeals of Texas San Antonio.

May 8, 1974.

Rehearings Denied June 5, and July 3, 1974.

Trueheart, McMillan, Russell & Hoffman, San Antonio, for appellant.

Wiley, Plunkett, Gibson & Allen (On Appeal Only), Daniel R. Rutherford, San Antonio, for appellees.

BARROW, Chief Justice.

This is a dual appeal from a judgment entered after a jury trial in Forney's suit filed on June 12, 1973, to set aside a default judgment rendered on July 9, 1970, after service by publication. The 1970 judgment awarded Anne Jorrie, former wife of Forney, individually and as next friend for her minor children, a judgment for the back child support and for the monthly payments awarded her in the 1966 divorce decree for her interest in the community estate. Jorrie recovered judgment for the sum he had paid the Internal Revenue Service for back income taxes owed by Forney and Anne During their marriage.

On September 23, 1966, a decree was entered by the 166th District Court of Bexar County, whereby Anne Forney was granted a divorce from William H. Forney. This decree granted Anne the custody of their two minor children and ordered Forney to contribute the sum of $250.00 per month as support for said children. It was also ordered that in lieu of any other award of community property of the parties, Forney would pay Anne the sum of $10,000.00, payable at certain specified sums each month. The decree further provides in part that Forney '. . . pay the community debts of the parties incurred up to the date of the 28th day of February, 1966, said indebtedness being as follows:' (Thirteen debts are listed, but no debt to the I.R.S. is included.).

On June 20, 1969, Anne married Samuel M. Jorrie. Few of the child support or the monthly payments owed Anne were paid by Forney, and at least two motions for contempt were filed by Anne in an effort to collect the delinquent child support. In the meantime, the I.R.S. determined that income taxes were owed by William H. and Anne Forney for the years 1962--1966. On January 23, 1970, it served notice of levy on the Main Bank & Trust on all accounts owned by San Jorrie in the Main Bank & Trust. The I.R.S. asserted a claim for.$21,068.54 against the interest of Anne in said accounts. After unsuccessful efforts to settle said claim, Jorrie paid the Forney back taxes to the I.R.S. from his separate estate, and on March 5, 1970, filed suit in Bexar County against Forney to recover said sum. A claim was also there asserted by Anne for the unpaid child support and the entire $10,000.00 awarded her in the divorce decree.

Citation against Forney was issued on March 5, 1970, and was returned unexecuted on April 16, 1970, by the attorney for plaintiffs (sometimes referred to hereinafter as 'Jorries'). On said date, plaintiffs filed a motion for citation by publication, wherein it was alleged by Dan Rutherford, Esq., the attorney for the Jorries, that '. . . they have made due and diligent search for the Defendant and have been unable to locate him and that he no longer resides in San Antonio, and has become a transient person, . . ..' The motion was supported by an affidavit of Rutherford that: '. . . I personally have attempted to find William H. Forney on numerous occasions and have had the Sheriff of Harris County and Bexar County attempt to find the Defendant, all to no avail. The Defendant is a transient person and has no fixed address at which personal service of process may be had. That at the present time he is absent from the State and that service of Citation under Rule 108 (Texas Rules of Civil Procedure) has been attempted, but to no avail.' Citation by publication was issued in this cause on May 13, 1970. On July 9, 1970, an attorney was appointed to defend the suit for the absent Forney, an answer was filed for him, and judgment by default was entered on July 9, 1970, after a hearing before the court. The judgment contained a writ of attachment on certain lands in Webb County, but execution and order of sale of same was returned unexecuted by the Webb County Sheriff at the request of Jorries' attorney. On May 24, 1972, the Jorries filed a complaint in the United States District Court against Forney and others in an attempt to collect the judgment. Service was had on Forney, but the suit was dismissed for want of jurisdiction.

On June 5, 1973, Jorrie et al., filed suit in the 131st District Court of Bexar County against Forney, B. J. McCombs, and others, seeking to establish a constructive trust on lands and estates allegedly conveyed by Forney to the others in an effort to avoid payment of the 1970 judgment. Shortly thereafter, Forney filed this suit to set aside the 1970 default judgment. An order was entered in the 131st District Court suit enjoining discovery or other proceedings therein until Forney's suit to set aside the 1970 default judgment was determined.

Two issues were submitted to the jury whereby the jury found: (1) that Rutherford, Anne and Sam Jorrie Did fail to have Forney served with actual notice of the 1970 suit with intent to fraudulently obtain a judgment without actual notice to him; and (2) that a total of $1,300.00 had been paid to Anne by Forney on the award in lieu of community property. No other issues were requested by either party, and therefore, we must presume on this appeal that the parties waived trial by jury on any disputed issues and that same were found by the trial court in a manner to support the judgment. Rule 279, Texas Rules of Civil Procedure.

The trial court rendered judgment on the verdict of the jury whereby it set aside and held for naught the 1970 default judgment and permanently enjoined Jorries from enforcing same. Judgment was granted against Forney on the claims asserted by Jorries in the 1970 suit whereby Anne was awarded the sum of $8,700.00 remaining unpaid on the award in lieu of community property. Sam Jorrie recovered judgment against Forney for $21,306.00, for reimbursement of the sum paid by him to I.R.S. Although the evidence was undisputed that many of the child support payments were not made by Forney, the trial court sustained Forney's motion that same were enforceable only by a contempt action against him, and refused to permit Anne to recover judgment for the delinquent child support payments, either individually or on behalf of the minor children.

Forney did not file a motion for new trial, but perfected his appeal from the denial of his motion for judgment on the verdict. He urged in said motion that the community property award is enforceable only by contempt; and, therefore, judgment should not have been entered for the unpaid $8,700.00. He urged that recovery could not be had for the payment made by Jorrie to the I.R.S. in that Jorrie was acting as a volunteer in paying same. Forney complained, also, that the trial court erred in considering either claim in that there were no affirmative pleadings made by the Jorries in this suit.

Jorries filed a motion for new trial, which was overruled, and Anne now complains affirmatively of the denial of a judgment for the child support. Forney's motion to dismiss her cross-appeal was dismissed after supplemental transcripts were filed with an amended appeal bond duly signed by all parties and corrected minutes of the trial court were filed which show that Jorries gave notice of appeal 'in open court' as required by Rule 353(a)(1). ¹

At the outset, we must consider the Jorries' cross-point that the trial court erred in setting aside the 1970 default judgment in that Forney was not prevented from making a meritorious defense by an extrinsic fraud of the Jorries. His suit to vacate the judgment, although a direct attack on the 1970 judgment, was in the nature of an equitable bill of review. Our Supreme Court in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), held that '. . . when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment . . . in a case in which the court had jurisdictional power to render it .' The Court included under this rule cases, such as that filed by Forney, challenging the validity of service of process.

It is well settled that before a litigant can successfully invoke a bill of review to set aside a final judgment, he must allege and prove: (1) a meritorious defense to the cause of action alleged 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. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). In Hagedorn, it was held that only extrinsic fraud such as fraud which denied the losing party the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert will entitle a complainant to relief by bill of review. See also Davis v. Winningham, 483 S.W.2d 535 (Tex.Civ.App.--Amarillo 1972, writ ref'd n.r.e.); 4 McDonald, Texas Civil Practice, Section 18.27.3.

No question is here raised regarding the sufficiency of Forney's pleadings to support an equitable bill of review. The Jorries assert, however, that there is no evidence or insufficient evidence of extrinsic fraud. The jury found, in response to the issue, which was submitted without objection by the Jorries, that the Jorries and their attorney fraudulently failed to serve Forney with personal service in order to obtain the judgment without actual notice to him . This finding is supported by testimony that the Jorries knew that Forney was living...