Middleton v. Murff, 10-84-060-CV
| Citation | 682 S.W.2d 672 |
| Decision Date | 29 November 1984 |
| Docket Number | No. 10-84-060-CV,10-84-060-CV |
| Parties | Bernard L. MIDDLETON, et al., Appellants, v. Bonner D. MURFF, et al., Appellees. |
| Court | Court of Appeals of Texas |
This is an appeal by appellants (plaintiffs below) from an order of the trial court in Cause 9248 denying plaintiffs' motion to vacate judgment in Cause 3424B.
The controlling facts are:
In April, 1981, appellee Murff filed suit against appellants in Cause 3424B in 87th District Court in Leon County to partition certain real estate in Leon County. Appellee Ward thereafter intervened in such suit.
On June 25, 1982, the parties appeared in court and entered an agreement to settle the case, and agreed to submit thereafter to an agreed judgment of the court. Soon thereafter appellants repudiated the agreement to settle and so informed the trial court and of the reasons therefor.
The matter was then set for a hearing on August 6, 1982. Plaintiffs appeared but the judge did not. Plaintiffs' counsel reached the judge by telephone, who advised plaintiffs' counsel he was going to enter a consent judgment without consent of plaintiffs and over their objections.
Thereafter the judge entered final decree in Cause 3424B dated August 6, 1982, dividing the property as previously agreed by the parties.
Plaintiffs filed motion for new trial which was overruled.
On August 5, 1983, plaintiffs filed this case, Cause 9248, as a Bill of Review. 1 On September 21, 1983, plaintiffs filed a Motion to Vacate the Judgment in Cause 3424B, and Withdraw Plaintiffs' Petition for Bill of Review (Cause 9248).
On December 16, 1983, after hearing, the court granted plaintiffs' motion for nonsuit on plaintiffs' petition for Bill of Review (Cause 9248), and denied plaintiffs' motion to vacate the August 6, 1982, judgment in Cause 3424B.
The trial court thereafter entered like judgment Nunc Pro Tunc, correcting clerical errors.
Appellants (plaintiffs) appeal on 12 points asserting the trial court erred in overruling their motion to vacate the 1982 consent judgment [in Cause 3424B] because the undisputed evidence discloses that the court knew before it entered the consent judgment that plaintiffs did not consent to the entering of such judgment and the court therefore lacked the authority to do so.
The record discloses that the parties agreed to the terms of the judgment rendered August 6, 1982, on June 25, 1982, but that they withdrew their agreement and consent prior to August 6, 1982, and so informed the judge. The judge nevertheless rendered the previously agreed to consent judgment.
A judgment rendered on agreement of parties is a consent judgment. But a valid consent judgment cannot be rendered when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party's consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. Burnaman v. Heaton, et al, S.Ct. 150 Tex. 333, 240 S.W.2d 288; Beazley et al, v. Randolph et al, CCA (Houston) NRE, 409 S.W.2d 487.
Appellants argue that because the...
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Stock v. Stock
...made in any proceeding having as its general objective a finding that such judgment was void when entered. Middleton v. Murff, 682 S.W.2d 672 (Tex.App.--Waco 1984, writ ref'd n.r.e.). Thus, it may not be necessary that appellant establish a meritorious defense to attack the void judgment. W......
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Middleton v. Murff
...by holding that the consent judgment was not void, and that therefore the requirements of a bill of review must be met to set it aside. 682 S.W.2d 672. We refused the petitioners' application for writ of error, no reversible error, and we now overrule their motion for rehearing. We find it ......