Le Master v. Dalhart Real Estate Agency.

• Decision Date: 05 June 1909
• Citation: 121 S.W. 185
• Parties: LE MASTER v. DALHART REAL ESTATE AGENCY.
• Court: Texas Court of Appeals

121 S.W. 185

LE MASTER v. DALHART REAL ESTATE AGENCY.

Court of Civil Appeals of Texas.

June 5, 1909.

Rehearing Denied July 3, 1909.

Appeal from District Court, Dallam County; L. S. Kinder, Judge.

Action by Mike C. Le Master against the Dalhart Real Estate Agency. From an order dissolving a temporary injunction, plaintiff appeals. Reversed.

Cooper & Stanford, for appellant. Gustavus, Bowman & Jackson and Chauncey & Carter, for appellee.

CONNER, C. J.

Appellant instituted this suit in the district court of Dallam county on November 5, 1908, to enjoin and to vacate a judgment by default rendered in the same court on April 13, 1906, in favor of appellee, the Dalhart Real Estate Agency, and against appellant, Mike C. Le Master, for the sum of $1,786. From this judgment no appeal or writ of error was ever prosecuted. At the inception of the present suit, a temporary injunction was granted as prayed for, but at a term of the court thereafter, viz., on April 16, 1909, the court sustained appellee's general demurrer to appellant's petition, and ordered the dissolution of the injunction. Appellant obtained leave to amend his petition, and the cause on the merits was continued for the term. To the order dissolving the injunction, however, appellant excepted and duly prosecutes an appeal therefrom to this court. The grounds upon which appellant in the petition excepted to bases his right to an injunction are: First, that the pleadings in the original suit affirmatively show that appellee had no right of recovery as adjudged on April 13, 1906; second, that said judgment of April 13, 1906, was predicated upon an amended petition which set up a new cause of action and to which appellant had not been cited to answer; and, third, that the citation in the original suit served upon appellant was insufficient to confer jurisdiction of the court over his person. In verification of these averments, the citation, the original and the amended original petition in the original suit were attached as exhibits to the petition for injunction, which also further set forth that no indebtedness as adjudged in fact ever existed, and gave appellant's excuse, to be hereinafter more particularly noticed, for not having earlier sought to set aside the judgment of which complaint is made.

The original petition in the suit, culminating in the judgment of 1906, averred as a basis for the action that the plaintiff (appellee herein) was engaged in the real estate business, and on January 3, 1906, "had for sale the 7,489 acres in Dallam county, Tex., of and belonging to one W. M. Pardue, and that thereafter plaintiff offered said land to defendant at the sum of $5.50 per acre, wherein plaintiffs were to receive the sum of 5 per cent. commission for selling same to any one on the following terms: $2,500 cash, balance in the following payments, one-third, less $2,000, in 60 days, with remainder in one, two, and three years at interest at the rate of 8 per cent. per annum from date thereof." The petition further alleged that the defendant herein by telegram accepted said offer, but later breached the contract of purchase, which at all times they were able and willing to complete, to plaintiff's damage $1,024, for which there was a prayer for recovery. The amended petition filed after appellant had been personally served with the citation herein assailed was substantially the same as the original petition, save that it set forth the correspondence ending in appellee's acceptance of terms and agreement to buy, and concluded with a prayer for damages in the sum of $1,786, instead of $1,024, as originally sought. The defects in the citation served upon appellant which it is insisted invalidates the judgment of April 13, 1906, are that the citation did not give the date of the filing of the original petition, and failed to command the defendant to appear and answer the petition. The case has been presented to us on the theory that the defects pointed out render the judgment of April 13, 1906, absolutely void and subject to collateral attack; the argument being that it is necessary to so conclude in order to authorize the injunction. It is to be observed, however that this is not a case where the judgment is collaterally brought in question, as where the judgment is offered as a muniment of title in a suit of trespass to try title, or the sale of a given piece of property is sought to be enjoined, but one where the judgment itself is the...