Maddox v. Summerlin

• Decision Date: 09 November 1898
• Court: Texas Court of Appeals
• Parties: MADDOX et al. v. SUMMERLIN et ux.<SMALL><SUP>1</SUP></SMALL>

47 S.W. 1020

MADDOX et al. v. SUMMERLIN et ux.¹

Court of Civil Appeals of Texas.

November 9, 1898.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Suit by J. W. Maddox and others against R. L. Summerlin and wife. Judgment for defendants. Plaintiffs appeal. Affirmed.

James Raley, for appellants. J. H. Clark, F. J. Wise, Ed. Haltom, and W. W. Walling, for appellees.

NEILL, J.

This suit was brought on July 30, 1897, by appellants against appellees to subject certain real property of the separate estate of Mrs. R. L. Summerlin, to the extent of its increased value by reason of improvements placed thereon, which were alleged to have been paid for with community funds, to the payment of an alleged judgment in favor of the appellants against the appellee R. L. Summerlin. The appellees, defendants below, after excepting to appellants' petition, answered (1) by a general denial; (2) by specially denying that the improvements on a certain parcel of the land were paid for with their community property, but averred that the payment was made with money of the separate estate of the wife; (3) by pleading res judicata as to the other pieces of land. The appellants, by a supplemental petition, in replication to the plea of res judicata, sought to avoid the effect of the judgments pleaded by averring that they were obtained by false swearing of the appellees. An exception of appellees was sustained to appellants' supplemental petition. The exceptions of appellees to appellants' amended original petition were overruled. The case was then tried before a jury, who, under a peremptory instruction from the court, returned a verdict in favor of appellees, upon which the judgment appealed from was entered.

Conclusions of Fact.

(1) The only property involved in this litigation, not affected by the plea of res adjudicata, is a strip of land in the city of San Antonio, with a front of 150 feet on South Flores street, and running back 300 feet, to San Pedro creek. It is a part of the "Old Vanderhoeven Homestead," inherited by Mrs. Summerlin from her father, and is her separate property.

(2) On the 6th day of December, 1892, the appellants J. W. Maddox and T. L. Wren recovered a judgment, in the district court of Bexar county, against George W. Angle, R. H. McCracken, R. L. Summerlin (one of the appellees), and Joe W. Maddox, for the sum of $3,596.99 2/3. "The first execution" on the judgment was issued by the clerk of said court to the sheriff of Bexar county, and was returned, "No property found," by said sheriff, on April 3, 1893. If any other executions were issued,—and it may be inferred there were from the language, "Plaintiff then read in evidence the first execution issued," etc., appearing in the statement of facts,—it is not shown whether or not they were returned satisfied. The return on "the first execution" is the only evidence which might be taken as tending to show that the judgment had not been satisfied when this suit was instituted. We conclude that such evidence is not sufficient to establish such fact in a case of this character.

(3) The indebtedness for which the judgment above described was rendered originated on the 21st day of May, 1885.

(4) Appellees were married on the 23d day of June, 1886. In 1888 and 1889, while they were husband and wife, a two-story frame house was built upon the strip of ground described in our first conclusion, and paid for by R. L. Summerlin with money acquired by him during his marriage. The amount paid by him for the building was $2,700, and was intended by him as a gift to his wife. Such building is still standing on the ground, and has enhanced the value of the premises to the extent of its cost.

(5) It does not appear from the evidence that R. L. Summerlin was, when the money was expended in the construction of said building, insolvent, or that he invested said money in improvements upon his wife's separate property, with the intention of hindering or delaying his creditors. Nor is there any evidence in the record bearing upon the question of solvency or insolvency of R. L. Summerlin's co-defendants in the above-described judgment at any time, either before or after said judgment was rendered.

(6) The other property involved in this suit was, in suits in which the appellants and appellees were adverse parties, wherein the issue tried involved the same issue sought again by appellants to be raised in this cause, adjudged by the district court of Bexar county, in which said suits were pending, to be the separate property of Mrs. Summerlin. One of said judgments was rendered on the 1st day of April, and the other on the 29th day of June, 1897, and both are final and in full force and effect.

Conclusions of Law.

It will be observed, from the second count in appellants' second amended original petition, which seeks to subject that part of Mrs. Summerlin's property to which she pleaded former adjudication to their judgment, does not mention, or in any way refer, to the prior judgments in her favor settling the matter in controversy. It is only when they are pleaded by appellees in bar of their action that appellants notice them in their pleadings. Then they plead in replication that certain testimony of each of the appellees given on trial of the cases in which the judgments were rendered was untrue, and that said judgments were obtained by fraud and false swearing. Error is assigned to the court's ruling sustaining exceptions to such pleading and in excluding testimony offered by appellants to prove its allegations. "The fraud which entitled a party to impeach the judgment of one of our own tribunals must be fraud extrinsic to the matter tried in the cause, and not merely consist in false and fraudulent documents or testimony submitted to that tribunal, and the truth of which was contested before and passed upon by it." Hilton v. Guyot, 159 U. S. 207, 16 Sup. Ct. 160. "Judgments are impeachable for those frauds only which are extrinsic to the merits of the case, and by which the court has been imposed upon or misled into a false judgment. They are not impeachable for frauds relating to the merits between the parties. All mistakes and errors must be corrected from within by motion for a new trial, or to reopen the judgment, or by appeal." Freem. Judgm. § 489. The solemn judgment of a court would become a jest if it could be impugned in the manner sought in this case. In this...