Puls v. Clark

• Decision Date: 20 January 1947
• Docket Number: No. 5761.,5761.
• Citation: 199 S.W.2d 811
• Parties: PULS v. CLARK.
• Court: Texas Court of Appeals

Page 811

199 S.W.2d 811

PULS v. CLARK.

No. 5761.

Court of Civil Appeals of Texas. Amarillo.

January 20, 1947.

Rehearing Denied February 24, 1947.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Suit in equity by Ed Puls against Earl A. Clark to set aside a default tax judgment. From a judgment of dismissal, plaintiff appeals.

Affirmed.

R. T. Correll, of Perryton, Hoover, Hoover & Cussen, of Canadian, and Sanders, Scott, Saunders & Smith, of Amarillo, for appellant.

Boyer, McConnell & Hankins, of Perryton, for appellee.

PITTS, Chief Justice.

This is a suit in equity filed by appellant, Ed Puls, on June 20, 1946, against appellee, Earl A. Clark, seeking to set aside a tax judgment rendered by default on March 30, 1943.

The merits of this case have been presented to this Court twice before as reported in Clark v. Puls, Tex.Civ.App., 192 S.W.2d 905 and Clark v. Ewing, District Judge, in Tex.Civ.App., 196 S.W.2d 53, to which cases we refer for a more complete statement of the case.

Briefly stated, however, the City of Booker, a municipal corporation of Lipscomb County, instituted a suit on July 8, 1942, against appellant herein, Ed Puls, for delinquent taxes for each year from 1930 to 1940, both inclusive, and impleaded all the other interested taxing units; service was had on Puls on July 22, 1942, but he failed to answer or to attend the trial when judgment was rendered against him by default for a total sum of $3541.23 as delinquent taxes against certain real estate owned by him and described as Outlots one, two, eight, and nine situated in the City of Booker, containing 93.72 acres and occupied by Puls and his family as a homestead, the said sum likewise included penalty, interest, and attorney fees. An order of sale was issued on May 6, 1943, directing the sheriff of Lipscomb County to sell the said land within sixty days to satisfy the tax judgment. Notice of sale was given and the said land was sold by the sheriff at public sale on June 1, 1943, to appellee, Earl A. Clark, for the sum of $3600, and a sheriff's deed was executed conveying the land to the said Clark. The said tax suit bore the number of 864 in the trial court.

On March 16, 1945, Cynthia M. Puls, joined by her husband Ed Puls, appellant herein, filed cause number 916 in the trial court admitting that the tax judgment in cause number 864 was rendered by default on March 30, 1943, against the said Ed Puls but they attacked the said judgment and charged that it was void because of certain irregularities in the proceedings had in the trial court and because the said judgment ordered the sale of the homestead of Cynthia M. Puls without having made her a party to the said suit. In cause number 916 they prayed for a judgment vacating and setting aside the sheriff's sale in cause number 864, for cancellation of the sheriff's deed, and for annulment of the purported lien against the said land by reason of the tax judgment rendered in said cause and they asked that the same be declared void and of no force and effect as against the said land. Appellee Clark joined issues with Cynthia M. Puls and her husband Ed Puls in cause number 916 but Cynthia M. Puls and Ed Puls prevailed in the trial court in that suit. The trial court's judgment in the said cause number 916 ordered, adjudged and decreed that the sheriff's sale and the sheriff's deed conveying the land in question to Earl Clark, appellee herein, by order of the court in cause number 864 be "vacated, set aside, annulled and held for naught" and the record of the said deed was ordered cancelled, annulled and held of no further force and effect; the cloud cast upon plaintiffs' title to the said land was ordered removed and quieted and all rights, title and interest in the said land claimed by Earl Clark were divested out of him and invested in the plaintiffs. In effect, the trial court granted all the relief in cause number 916 that appellant has prayed for in this cause, and even more. Earl A. Clark perfected an appeal to this Court. After a careful consideration of the merits of the case by this Court, the judgment of the trial court was reversed and judgment was rendered for Earl A. Clark as the same is reported in Tex.Civ. App., 192 S.W.2d 905. An application for a writ of error was presented to the Supreme Court which declined to disturb the judgment rendered by this Court and the same became final.

On June 20, 1946, before a writ of possession was executed, Ed Puls and wife filed this suit number 932 in the trial court and presented a verified petition to the Honorable W. R. Ewing, the trial judge, asking for injunctive relief, which resulted in an application being made by Earl A. Clark to this Court for a writ of prohibition which writ was granted by this Court only in so far as it was necessary to protect its jurisdiction and the enforcement of its judgment as the same is reported in Tex.Civ.App., 196 S.W.2d 53.

Appellant went to trial in this case on his second amended original petition which eliminated Cynthia M. Puls as a party plaintiff and which affirmed title to the land in appellee, Earl A. Clark, under the judgment in the tax suit in cause number 864. In the instant suit appellant seeks to set aside the judgment rendered in cause number 864 as well as the sheriff's sale and the cancellation of the sheriff's deed of conveyance of the said land.

Appellee Clark answered by setting up the judgment rendered by this Court in cause number 916 as res adjudicata of this cause number 932 by a plea in bar followed by a general denial. Appellee introduced in evidence the transcript and statement of facts in cause number 916 in support of his plea and the trial court sustained the plea in bar and dismissed cause number 932 from which judgment of dismissal an appeal has been perfected to this Court.

The record reveals that appellant admits he was served with citation in cause number 864 in July, 1942, before a default judgment was rendered against him on March 30, 1943. He further admits that he did not file an answer in the said suit nor did he, or anyone representing him, attend the trial. He further admits that his wife, Cynthia M. Puls, read to him from the newspaper a published notice of the sale to be held of the said land prior to the date of the sale and that he did attend the sale but did not bid on the land. The record further reveals that appellant said openly after the sale that the purchaser had bought a law suit and it appears that appellant has verily made good that threat. Nowhere does appellant attempt to excuse his lack of diligence in his failure to answer and contest the tax suit in cause number 864 or to file a motion for new trial in said cause or to perfect an appeal from the said judgment or to do anything else to protect his interests in the matter until he joined his wife in filing cause number 916 nearly two years after he had permitted a default judgment to be rendered against him in cause number 864. He did plead in this cause that "judgment was by default, the defendant Ed Puls, plaintiff herein, having erroneously believed that arrangements had been made with counsel to represent him in said cause; and the plaintiff having failed to notify him of the setting of said cause for trial." Any misunderstanding he may have had with an attorney about representing him or the failure of the plaintiff to notify him of the setting of the case does not show diligence on his part under the law and does not excuse him of negligence. In the instant case he does not allege fraud, accident, or mistake nor does he charge that any wrong on the part of anybody prevented him from being heard or from making a defense in cause number 864 except that he alleged that plaintiff failed to notify him of the setting of the case, yet he had not filed an answer in the suit. It seems that he relies solely on alleged irregularities in the judgment and sheriff's sale in cause number 864 and on a plea of misconception of remedy by appellant in filing cause number 916 in order to prevail in this suit in equity to set aside the judgment in cause number 864. The record does not reflect that appellant filed any supplemental pleading in reply to appellee's plea of res adjudicata. We therefore have failed to find any plea of misconceived remedy in the transcript. It is found for the first time in appellant's brief. It is therefore presumed that the trial court did not have the benefit of a plea of misconception of remedy by appellant.

A subsequent action seeking relief from a final judgment previously rendered by a court of competent jurisdiction is carefully observed by courts of equity and grounds for disturbing such final judgments are restricted. The complaining party must show even more than that an injustice has probably been done. He must also show that diligence has been exercised on his part, that he has a meritorious defense to the cause of action and that the previous judgment was entered against him without any fault or negligence on his part. Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; Donovan v. Young, Tex.Civ.App., 127 S.W.2d 517; American Red Cross v. Longley, Tex.Civ.App., 165 S.W.2d 233.

An equitable proceeding to set aside a former judgment cannot be substituted for an appeal from a former judgment that was available to the losing party in the former judgment. Union Bank & Trust Co. of Fort Worth v. Smith, Tex.Civ.App., 166 S.W.2d 928; Sugg v. Sugg, Tex.Civ.App., 152 S.W.2d 446; Smith v. Rogers,...