Garza v. Kenedy

• Decision Date: 02 November 1927
• Docket Number: (No. 815-4847.)
• Citation: 299 S.W. 231
• Parties: GARZA et al. v. KENEDY et al.
• Court: Texas Supreme Court

299 S.W. 231

GARZA et al. v. KENEDY et al.

(No. 815-4847.)

Commission of Appeals of Texas, Section B.

November 2, 1927.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Juana G. Garza and others against Robert Tom Kenedy and others. Judgment of dismissal was affirmed by the Court of Civil Appeals (291 S. W. 615), and plaintiffs bring error. Judgments of the district court and the Court of Civil Appeals reversed, and cause remanded to the district court for trial.

Kleberg & North, of Corpus Christi, and U. S. Algee and Huson & Huson, all of San Antonio, for plaintiffs in error.

E. B. Ward and Boone & Savage, all of Corpus Christi, W. L. Dawson, of Mission, James H. Anderson, of Mercedes, and Robt T. Kenedy, of Edgar, for defendants in error.

SHORT, J.

The writ of error herein was granted to review the holding of the Court of Civil Appeals for the Fourth district, affirming the judgment of the trial court which sustained a general demurrer and certain special exceptions resulting in a dismissal of the plaintiffs' case. 291 S. W. 615. The plaintiffs' action was one to cancel a certain judgment of foreclosure and a sale of land thereunder and to recover an interest in the land. The holding of the Court of Civil Appeals is predicated expressly upon the ground that the suit is a collateral attack upon the judgment for grounds showing at most only irregularities. The holding is thus stated by that court:

"This is clearly a collateral attack on a judgment, which does not show on its face its invalidity, but, at most, an irregularity. The parties to the judgment have no interest in the property. While the original parties are made parties to this suit and the judgment is attacked, still the suit has an independent purpose and affects parties not parties to the suit and judgment complained of by the appellants herein. The attack on the judgment is a mere incident, and the judgment creditor could suffer no loss by setting aside the judgment. Therefore the attack on the judgment is collateral, and even if there was no service or there was some irregularity shown dehors the record, it could not be attacked in this proceeding in so far as it would affect the rights of purchasers under the judgment, and there is no other substantial relief sought in this suit."

We cannot agree with the Court of Civil Appeals in its statement of the nature of this suit, and therefore do not approve its conclusion that the same constitutes a collateral attack on the judgment. The petition, at great length, sets forth that some of the plaintiffs, there being several, were not served with citation in that case, made no appearance therein through attorneys or otherwise, and had no notice whatever of the judgment rendered until a time long after their right to appeal appears to have expired; that the only pleading in the case by plaintiff was an ordinary petition for partition under the statute; and that without their authority, knowledge, or consent a personal judgment was rendered against them, some of whom were married women, and others of whom were minors, and in other particulars alleged irregularities, which, if true, would have authorized a reversal upon appeal.

As to the sale itself, it was specifically alleged that the five lots in controversy were sold in bulk rather than separately; that, in truth they were of the reasonable value, less incumbrances against the same, of $7,000 while they sold at the foreclosure sale for only $300, more than $200 of which was credited or paid upon the personal judgment recovered by the plaintiff; that the purchasers at such sale were the attorneys for the plaintiff; and that such purchasers and all subsequent vendees, all of whom were made parties, had constructive and actual notice of all the irregularities and vices alleged as a ground for attack upon the judgment.

The case therefore turns upon whether or not this is a direct attack upon the judgment complained of. The case of Crawford v. McDonald, 88 Tex. 630, 33 S. W. 327, cited first by the Court of Civil Appeals for its holding, is perhaps the leading authority upon this question. In a very lucid opinion by Justice Denman, a very concise differentiation between a direct and collateral attack is made. It is there said:

"A direct attack on a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of same, in a proceeding instituted for that purpose, such as a motion for a rehearing, an appeal, some form of writ of error, a bill of review, an injunction to restrain its execution, etc. A collateral attack on a judgment is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes aforesaid, as where, in an action of debt on a judgment, defendant attempts to deny the fact of indebtedness, or where, in a suit to try the title to property, a judgment is offered as a link in the chain of title, and the adverse party attempts to avoid its effect," etc.

When tested by these rules, and they undoubtedly are sound, the present suit clearly is a direct attack not only to vacate the judgment in the prior suit, but to set aside the sheriff's deed made in the attempted enforcement of the same. It is in no sense an effort to avoid the binding force of such judgment without formally and regularly setting the same aside. The suit admittedly is brought in the court wherein such original judgment was rendered and makes parties all the parties to the original suit, and the petition contains a prayer for judgment —

"setting aside, vacating, canceling, annulling, declaring void and of no effect the said judgment in said cause No. 5645, hereinabove complained of and described, and the order of sale issued thereon, as above described, and the said sheriff's sale and sheriff's deed thereunder, as hereinbefore described; that said judgment, order of sale, sheriff's sale, sheriff's deed to said defendants W. L. Dawson and Jas. H. Anderson, aforesaid, and said deeds from defendants W. L. Dawson and Jas. H. Anderson to the defendant John Grant, and from said John Grant and wife, Blanche Grant, to said defendant William Meaney, and from said defendant John Grant, to the defendant C. L. Burchers, each hereinbefore set forth and described, be each declared and adjudged to be of no binding force or effect against these plaintiffs. * * *"

It is difficult to conceive anything that could be added to the petition to make it a direct attack upon the judgment if this suit be not such attack.

If this be a direct attack, it is not necessary to allege that the judgment shows on its face its invalidity, for that would render the same void and subject to a purely collateral attack. Since the original parties to the judgment are made parties to this suit, it cannot alter the nature of the action that others were also made parties defendant. It cannot be true that the parties to the judgment have no interest in the property when testing the demurrer. It is alleged that Kenedy, one of the defendants, the...