Godshalk v. Martin

• Decision Date: 23 January 1918
• Docket Number: (No. 1279.)
• Citation: Godshalk v. Martin, 200 S.W. 535 (Tex. App. 1918)
• Parties: GODSHALK v. MARTIN et ux.
• Court: Texas Court of Appeals

200 S.W. 535

GODSHALK v. MARTIN et ux.

(No. 1279.)

Court of Civil Appeals of Texas. Amarillo.

January 23, 1918.

Appeal from District Court, Hartley County; Reese Tatum, Judge.

Suit by J. P. Martin and wife against A. L. Godshalk. From a judgment vacating the judgment in a prior action, defendant appeals. Reversed and remanded.

Bailey & Richards, of Dalhart, for appellant. Arthur Schlofman and R. E. Stalcup, both of Dalhart, for appellees.

HALL, J.

Appellant, Godshalk, filed suit in the district court of Hartley county, September 18, 1912, against J. P. Martin and wife, praying for judgment in the sum of $2,407.66 and to foreclose a vendor's lien on certain land described in the petition. This suit was numbered 773 upon the district court docket. On February 25, 1913, after the notices to serve nonresident defendants had been returned into court, judgment by default was rendered for plaintiff in accordance with the prayer of the petition, and in due time order of sale was issued, the land was sold, and plaintiff became the purchaser at said sale. January 30, 1917, plaintiff. Godshalk, filed in said cause his motion praying that a certain clerical error in the record entry of said judgment be corrected, and after due notice of this motion to the defendants, an order was entered correcting said judgment. February 20, 1917, appellees, as plaintiffs in this action, filed their petition, praying that the former judgment in said cause No. 773 and as corrected be vacated and held for naught, alleging that the appellee, J. P. Martin, had never been served with citation or any other character of notice of said suit, and had made no appearance nor waived service of process therein. After hearing by the court without a jury, judgment was rendered setting aside the former judgment in cause No. 773, and opening same for further trial. To this action and judgment the appellant excepted, gave notice of appeal, and the matter is properly before us for review.

The first assignment of error is that the court erred in overruling the defendant's special exception, and in not requiring plaintiffs, Martin and wife, to allege facts constituting a meritorious defense to the original cause of action against them, in suit No. 773. The rule in cases of this character, as announced by Judge Williams, in August Kern Barber Supply Co. v. Freeze et al., 96 Tex. 513, 74 S. W. 303, is:

"It has always been the rule that, when a judgment is sought to be reopened for any cause, in order to permit a defense to be made which the defendant was prevented from proving upon the trial in which the judgment was obtained, the nature of the defense must be shown to the court. It is true that in some of the cases in which this doctrine was applied the judgment was attacked because the party seeking injunction had not in fact been served, but this was not made to appear from the face of the record as in the cases first discussed, but was asserted upon evidence outside the record. In such cases the rule, at least with reference to domestic judgments of the superior courts, is that the record is conclusive evidence of the fact of service, and the judgment cannot be attacked collaterally upon evidence aliunde, but only by direct proceeding to set it aside and let in defenses. To this class of cases the rule that the party seeking equitable relief must show meritorious defense to the cause of action, in order to obtain the intervention of equity, has been applied, whether properly or not, may admit of differences of opinion."

The case before us is one in which, from the return on the notice to serve nonresident defendants, and from the recital in the judgment, it appears that Martin was duly served. As said by Hodges, J., in Walker v. Chatterton et al., 192 S. W. 1085:

"When the record discloses that the judgment attacked is valid upon its face, it devolves upon the parties seeking its annulment to show, not only no service of citation or appearance, but that he has a good defense to the suit."

After a review of the authorities, this court, through Mr. Justice Boyce, in Union Pacific Ry. Co. v. Miller, 192 S. W. 358, said:

"Some confusion at one time existed in the decisions of this state as to whether or not in this character of case it would be necessary for one seeking to enjoin a judgment alleged to be void to allege and prove that he had a meritorious defense to the original cause of action on which the judgment was rendered. Out of this confusion a rule of decision, based on a distinction between judgments where the invalidity appears from the face of the record and those where the invalidity is only made to appear by extrinsic evidence, has been evolved, which, is claimed, will reconcile the apparent conflict. Whether this distinction may with good reason be applied to this class of cases or not, it seems to have obtained recognition by the Supreme Court, and the rule based on this distinction seems to be now well settled. [Citing authorities.] The rule announced by these decisions may be stated thus: Where an injunction is sought against the execution of a judgment alleged to be void, it is not necessary to show a meritorious defense to the original cause of action in those cases where the invalidity of the judgment appears upon the face of the record; but, if extrinsic evidence is necessary to establish such invalidity, then it will be necessary for the plaintiff seeking the injunction to show a meritorious defense."

This proceeding is a direct attack upon the judgment and comes within the rule announced in cases where it is sought to enjoin the judgments because of alleged invalidity. For the reasons stated we think the court erred in overruling the exception. San Bernardo Townsite Co. et al. v. Hocker, 176 S. W. 645; McCaulley v. Western National Bank, 173 S. W. 1001; Western Lumber Co. v. Chicago, Rock Island & Gulf Ry. Co., 180 S. W. 644.

The proposition urged under the second assignment of error is: The return upon the notice showing legal service and the judgment reciting legal service, unless it be shown that the plaintiff was guilty of fraud, connivance, or collusion,...