Lewright v. Manning

• Decision Date: 17 June 1965
• Docket Number: No. 84,84
• Citation: 392 S.W.2d 466
• Parties: W. M. LEWRIGHT, Cecil D. Redford, Dwight Carlsen, Dr. R. V. St. John and Ernest T. Fontaine, Appellants, v. Liston MANNING, Appellee.
• Court: Texas Court of Appeals

Page 466

392 S.W.2d 466

W. M. LEWRIGHT, Cecil D. Redford, Dwight Carlsen, Dr. R. V St. John and Ernest T. Fontaine, Appellants, v. Liston MANNING, Appellee.

No. 84.

Court of Civil Appeals of Texas, Corpus Christi.

June 17, 1965.

Rehearing Denied July 13, 1965.

John A. Waller, Corpus Christi, for appellants.

Oscar A. Spitz, Corpus Christi, for appellee.

NYE, Justice.

Appellants filed suit in the nature of a declaratory judgment action against appellee alleging that a judgment amending a certain deed restriction entered over two years prior thereto was void on its face as not being a true and proper class action. Appellee's motion for summary judgment was granted by the trial judge decreeing that appellants take nothing by their suit. Appellants have perfected their appeal to this Court.

The prior action was brought by plaintiffs Hardwicke and Calaway in the nature of a class action as provided by Rule 42, Texas Rules of Civil Procedure, against defendants Joslin, Bickley and Allen, who owned property in the subdivision and two named saving and loan associations as mortgagees of property owners in this subdivision. In January, 1961, in Cause Number 72017-C, hereinafter called prior cause or prior judgment, a judgment in the district court of Nueces County, Texas, was entered, amending the deed restriction on a certain parcel of land (being a residential lot) in the subdivision, from a single-family residence use to a multi-family or apartment use. At the time of the suit Hardwicke was the owner of the parcel of land and Calaway was contractually interested therein. Thereafter, the title to the land was conveyed to Manning, the appellee here. In April, 1963, appellants, all property owners in the same subdivision, filed suit against Manning, appellee, praying for a declaratory judgment whether or not their rights as persons owning residential tracts in Bessar Park Addition and who were opposed to the removal of the restriction from Manning's land, were adjudicated in the prior cause.

Appellants complain of the judgment in the prior cause, alleging that such judgment was void on its face as not being a true and proper class action for the reasons (1) that the suit did not include defendants who were representative of all classes in Bessar Park Addition, (2) that the suit included too few defendants to constitute a group representative of all of the classes in Bessar Park Addition, (3) that the judgment did not contain therein a finding that, in law, constituted a legal ground for removal of deed restrictions, and (4) that the law suit constituted a legal fraud in that it was not an adversary proceeding but was a friendly suit between the parties to the suit.

Additionally, plaintiffs pleaded that such judgment in the prior cause is a nullity as to appellants, because it did not have as defendants, persons representative of the class of persons to which appellants belong, alleging: (1) that at the time of the institution of the prior cause appellants constituted the class of persons in Bessar Park opposed to the removal of the deed restriction in question; (2) that none of the appellants had knowledge of the institution of the suit or existence thereof prior to entry of judgment, and did not learn about the judgment until long after its rendition; (3) that in addition to appellants there were other persons owning residential property in Bessar Park Addition opposed to the removal of the deed restrictions in question, and that said persons constituted a part of the class who were not represented in the prior cause; (4) that none of the named defendants in the prior cause had any authority to or permission from appellants to represent them; (5) that in fact the named defendants Bickley, Joslin and Allen, in the cause were unopposed to the allegations of the plaintiffs in said suit and were actually representatives solely of the class of persons owning residential lots in Bessar Park Addition who were not opposed to the removal of the deed restriction on the property in question; and (6) that the interests of defendants Bickley, Joslin and Allen in the prior cause were not in any way common with the class of persons in Bessar Park Addition opposed to removal of the deed restrictions from the land in question.

Appellants' two points on appeal are: that the trial court erred in decreeing that appellants were not entitled to a trial of their petition for declaratory judgment to the effect that their rights were not adjudicated in the prior judgment because the prior judgment is clearly ambiguous on its face, as a matter of law, as to the classes in Bessar Park Addition whose rights were adjudicated therein. Point two: the trial court erred in granting the summary judgment on the grounds that the prior judgment was a proper class action and not subject to collateral attack by appellants because the prior judgment could not have obtained jurisdiction over appellants where none of the defendants in that prior suit represented the class of persons to which appellants belong.

At the outset it must be clearly understood that the appellants do not claim that the judgment entered by the district judge in the prior cause was erroneous. This type of complaint could only be made in a direct attack on the judgment by way of appeal, writ of error, or bill of review. Before a litigant can successfully invoke the equitable proceeding in the nature of a bill of review he must join as parties in the attack all those who were parties to the judgment, and 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, and (3) unmixed with any fault or negligence of his own. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, Sup.Ct.1950; Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, Sup.Ct.1935, 41 Texas Law Review, Page 179.

An examination of appellants' petition and the contentions and complaints set forth in this suit are those which would, for the most part, be considered in a direct attack in the nature of a bill or review.

The grounds upon which a collateral attack is made upon a judgment in the ordinary class of situations are where the court which rendered the judgment has (1) no jurisdiction of the person or the party or his property, (2) no jurisdiction of the subject matter of the suit, (3) no jurisdiction to enter the particular judgment rendered or (4) no capacity to act as a court. There are some affirmative defenses to the collateral attack even when one of the foregoing grounds are established, such as estoppel, res judicata, or that part of a judgment is avlid although another is void. 41 Texas Law Review, pp. 161-198 and pp. 499-544; Gus M. Hodges 'Collateral Attacks on Judgments'. We are not concerned with (2) through (4) above, or any affirmative defenses.

A distinction must be made between a direct and collateral attack on the judgment. The former may be based on any error which probably caused a wrong judgment and such error may be shown by almost any relevant evidence. The collateral attack may assert only grounds which would show the court rendering the prior judgment to be without jurisdiction, and such grounds may be proved only by the record in the proceeding leading to the prior judgment. 41 Texas Law Review; Collateral Attacks on Judgments, supra.

Appellants failed to join any the parties to the prior suit in the present case. They contend on appeal that the court that rendered the prior judgment had no jurisdiction of the appellants and therefore the judgment is void as to them. There is no doubt that appellants' present suit is a collateral attack on the prior judgment.

The issue then, narrows down to a determination of the validity and integrity of the prior judgment when attacked collaterally. The question is: Can parties in a collateral attack test the recitals in a prior judgment to determine whether members of the classes recited, represented the class of persons to which the attacking parties belong?

The chief distinction between a void judgment and a valid one, is the absence of jurisdiction in the court that rendered the judgment. If the court lacked jurisdiction the judgment is void. If it had jurisdiction, the judgment may be voidable, but it cannot be void. 34 Tex.Jur.2d § 265, and cases cited therein. Inasmuch as it is only void judgments that can be successfully attacked in collateral proceedings, it is evident that we must consider the judgment itself to determine if the court obtained jurisdiction of the appellants in the prior judgment. 34 Tex.Jur.2d § 360; Bowers v. Chaney, 21 Tex. 363 (1858). The judgment in the original suit stated that:

'On this the 13th day of January, 1961, came on to be heard the above entitled and numbered cause; and came James C. Calaway in person and both Plaintiffs by their attorney of record and announced ready for trial; and came the Defendants, E. S. Joslin and E. T. Bickley, by their attorney of record and announced ready for trial; and came the Defendant, Corpus Christi Savings & Loan Association, by its attorney of record and announced ready for trial; and came the Defendant, First Savings & Loan Association of Corpus Christi by its attorney of record and announced ready for trial; and Defendant Ross L. Allen, having filed his Disclaimer herein. Said Defendants being sued herein individually and as representatives of all property owners and mortgagees of Bessar Park, an Addition to the City of Corpus Christi, Nueces County, Texas.

'And it appearing to the Court, after having duly heard and considered the pleadings, evidence and argument of Counsel:

'(b) That the subject property has been zoned by the Zoning and Planning Commission of the City of Corpus Christi, Texas, for many years as 'A-1 or apartment use.'

'(c) That directly across the street from the subject property there is an...