Maddox v. Summerlin

Decision Date27 February 1899
PartiesMADDOX et al. v. SUMMERLIN et ux.
CourtTexas Supreme Court

Suit by J. W. Maddox and others against R. L. Summerlin and wife. From a judgment for defendants, affirmed by the court of civil appeals (47 S. W. 1020), plaintiffs bring error. Reversed.

James Raley, for plaintiffs in error. J. H. Clark, F. J. Wise, Ed. Haltom, and W. W. Walling, for defendants in error.

BROWN, J.

This suit was instituted by the plaintiffs in error against R. L. Summerlin and his wife on July 30, 1897, to subject a certain lot, with others, in the city of San Antonio, to the payment of a judgment rendered in favor of the plaintiffs in error against R. L. Summerlin and others. The lot was the separate property of Mrs. Summerlin, and upon it was erected a house alleged to have been built by R. L. Summerlin with money which belonged to the community estate of himself and wife. The plaintiffs sought to subject to the payment of their debt the value of the improvements so made with the community funds. The original petition embraces a number of lots, but the defendants pleaded res adjudicata as to all the pieces of property except the one hereinafter mentioned. To this plea the appellants replied by supplemental petition, setting up that the judgments pleaded by the defendants were obtained by false swearing of the said defendants, and were therefore void. The court sustained exceptions to the supplemental petition, and upon a trial the court instructed the jury to find and return a verdict in favor of the defendants.

The court of civil appeals found, in substance, the following facts: The lot in question consists of a strip of land in the city of San Antonio, with a front of 150 feet on South Flores street, running back 300 feet to San Pedro creek, being a part of the Vander Hoeven homestead, inherited by Mrs. Summerlin from her father. 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, and Joe Maddox for the sum of $3,596.99. Execution was issued upon the judgment April 3, 1893, and was returned the same day indorsed, "No property found." The indebtedness for which the judgment above described was rendered originated on the 21st day of May, 1885. R. L. Summerlin and his wife were married on the 23d day of June, 1886, and in 1888 and 1889, while they were husband and wife, a two-story frame house was built upon the strip of ground, and paid for by R. L. Summerlin with money acquired by him during his marriage. The sum paid was $2,700, and was intended by him as a gift to his wife. The building is still standing on the ground, and has enhanced the value of the premises to the extent of its cost.

It does not appear from the evidence that R. L. Summerlin was, when the money was expended in the construction of the building, insolvent, or that he invested said money in improvements upon the property with the intention of hindering or delaying his creditors. There is no evidence in the record with regard to the solvency or insolvency of Summerlin's co-defendants in the judgment, either before or after the judgment was rendered. The other property involved in the suit was the same involved in other suits wherein the issues tried involved the same issues sought again to be raised by appellants in this cause, and were adjudged in said suits in favor of the defendants.

The court of civil appeals held that there was no evidence upon which to submit this case to the jury, because the plaintiffs did not prove that the judgment was then unpaid. It will be observed that the judgment was recovered in December, 1892, and this suit was instituted in the year 1897. Within one year from the rendition of the judgment, an execution was issued and returned, "No property found." By article 2326a of the Revised Statutes of 1895 of this state, a judgment upon which an execution has been issued within one year continues in force for ten years, and at any time during that period another execution might be issued, and the judgment enforced, without being revived. Under the facts of this case, the judgment would be presumed to be in force, and the parties who claim a defense against it on the ground that it had been paid must establish that fact. 2 Greenl. Ev. § 516.

It is contended in this court that the district court erred in sustaining exceptions to the supplemental petition setting up the invalidity of the judgments alleged to have been procured by false swearing. This is to be deemed a collateral attack upon those judgments, since it does not appear that either of them was rendered in the court in which this suit was pending, and, although they may have been procured by fraud, it is the policy of the law not to permit judgments to be attacked in such a proceeding as this upon that ground. Black, Judgm. § 296; Van Fleet, Coll. Attack, § 550; Dilling v. Murray, 6 Ind. 324; Buchanan v. Bilger, 64 Tex. 589; Fleming v. Seeligson, 57 Tex. 531; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876; Williams v. Haynes, 77 Tex. 283, 11 S. W. 1029. The case of McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357, cited by the plaintiffs in error, was a direct proceeding to set aside a judgment obtained by fraud, and does not sustain the contention of the plaintiffs in error, but in its reasoning fully...

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