Litton v. Waters
| Decision Date | 15 April 1942 |
| Docket Number | No. 11156.,11156. |
| Parties | LITTON v. WATERS. |
| Court | Texas Court of Appeals |
Appeal from Ninety-third District Court, Hidalgo County; W. R. Blalock, Judge.
Action by Amos L. Litton against Frank B. Waters to set aside a judgment and have a new judgment entered on the same cause of action forming the basis of the previous judgment. From a judgment of dismissal, plaintiff appeals.
Affirmed.
Oxford, Haigh & Oxford, of Edinburg, for appellant.
Strickland, Ewers & Wilkins, of Mission, for appellee.
A rather unusual case is presented by the record before us. Amos L. Litton has appealed from an order dismissing his suit wherein he asserted that a judgment rendered in his favor in 1928 should now be set aside and a new judgment entered upon the same cause of action which formed the basis of the judgment attacked.
On July 9, 1928, Litton brought an action against appellee, Frank B. Waters, based upon a promissory note. The transcript contains a citation issued on July 10, 1928, which does not show the docket number of the suit, except by an endorsement on the back of the citation. The officer's return shows due service upon Waters.
On November 7, 1928, judgment was rendered in favor of Litton for the sum of $1,938.75. This judgment contains a recital that Waters was duly cited but made default.
On February 3, 1941, Litton filed what he styles a "First Amended Original Petition" which was docketed by the district clerk and filed under the same number as that assigned to the original suit, No. 6682. This petition was twice amended and the one before us is styled, "Third Amended Original Petition." In this petition Litton claimed that the original judgment was invalid because of a defect in citation, that the issuance of said citation did, however, prevent the running of the statute of limitations and that he was entitled to judgment upon the note executed by Waters. Litton prayed, inter alia, that "the court enter his order and/or judgment formally cancelling and striking from the judgment rolls such void judgment heretofore described."
It seems that the trial court treated the filing of the "First Amended Original Petition" as the institution of a new suit, and as an attempted direct attack upon the former judgment. In view of the nature of the relief sought, this was a correct view of the legal situation presented by the pleading. 25 Tex.Jur. 586, § 186. After the amendments to the petition had been made, as above set forth, appellee filed numerous special exceptions to appellant's trial pleadings. The exceptions asserting that the petition showed upon its face that the cause of action was barred by the four year statute of limitations (Article 5529, Vernon's Ann.Civ.Stats.), as well as by the equitable doctrine of laches, were sustained by the...
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