Randall v. Collins

• Decision Date: 01 January 1881
• Docket Number: Case No. 1272.
• Citation: 58 Tex. 231
• Parties: EDWARD RANDALL v. E. M. COLLINS, EXECUTRIX.
• Court: Texas Supreme Court

58 Tex. 231

EDWARD RANDALL

v.E. M. COLLINS, EXECUTRIX.¹

Case No. 1272.

Supreme Court of Texas.

1881.

APPEAL from Houston. Tried below before the Hon. W. D. Wood.

The facts are stated in the opinion and in the former reports of the same case. House & Co. v. Collins, 42 Tex., 487;Randall v. Collins, 52 Tex., 435.

Moore & Burnett, for appellant.

Nunn & Williams, for appellee.

GOULD, CHIEF JUSTICE.

This case is before us for the third time. When first here the answers of defendant were treated as a cross-bill in equity to set aside a judgment by default, the averments being that Burnett had been instrumental in making the record falsely show service on Collins, and that the latter had thereby been deprived of any opportunity to make available the legal defense which it is claimed that he had. 42 Tex., 492.

When here a second time, the judgment was reversed because of an error in the charge, and because there was no satisfactory evidence of the alleged fraud, or to contradict the return of service. 52 Tex., 435. On the last trial, the court in its charge allowed the jury to find for the defendant if the evidence satisfied them that Collins was not actually cited, and had a valid defense which he might have made, thus treating it as unnecessary to establish the alleged fraud in Burnett. Under this charge, and with substantially the same evidence heretofore held insufficient to contradict the return of service, the jury again found in favor of defendant. Was this charge correct? Will a court of equity hear evidence to impeach a judgment by contradicting the sheriff's return of service in any other case than where the plaintiff has procured or connived at the false return? The principles of natural justice require a person to have notice of a suit before he can be conclusively bound by its results. 18 How., 404. On the other hand, public policy forbids the verity of the records of courts of justice to be assailed by parol evidence. Lawler v. White, 27 Tex., 253.

The previous decisions of this cause in this court affirm that equity, notwithstanding that rule of policy, will interfere as against a party who fraudulently procured the record to show service, and will hear parol evidence to show the facts in opposition to the officer's return. Whether the same rule will prevail as against a party innocent of conniving at or procuring the false return, is a question of importance which the two members of the court who sit in this cause, regarding as one of doubt and difficulty, feel justified in passing, its decision not being necessary. We, however, refer to a few of the authorities which bear upon it. Walker et al. v. Robbins, 14 How., 584; Driver v. Cobb, 1 Tenn. Ch., 490; Stubbs v. Leavitt, 30 Ala., 352; Coit v. Harm, 30 Conn., 199; Newcomb v. Davey, 27 Iowa, 381; Wilson v. Montgomery, 14 S. & M.; Bell v. Williams, 1 Head, 227; Johnson v. Coleman, 23 Wis., 452; Shuford v. Cain, 1 Abbott, U. S. C. C., 306; Freeman on Judgments, secs. 495-499; Wells' Res Adjudicata, chs. 33-5, and sec. 568. But assuredly, if equity will allow one who has been guilty of no fault or negligence to contradict the sheriff's return by parol evidence for the purpose of having an unjust judgment by default set aside, we are of opinion that it should require the evidence to be clear and satisfactory. It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony. In the case of Driver v. Cobb, supra, Chancellor Cooper says: “Nor will one witness alone suffice to successfully impeach the return, for that would only be oath against oath. In analogy to the denials or averments of a sworn answer upon the defendant's knowledge, there should be two witnesses, or one witness with strong corroborating circumstances. And without reference to this rule, upon general principles, it would seem essential to the peace and quiet of society that these solemn...