Ritch v. Jarvis

• Decision Date: 11 July 1933
• Docket Number: No. 4342.,4342.
• Citation: 64 S.W.2d 831
• Parties: RITCH et al. v. JARVIS et al.
• Court: Texas Court of Appeals

64 S.W.2d 831

RITCH et al. v. JARVIS et al.

No. 4342.

Court of Civil Appeals of Texas. Texarkana.

July 11, 1933.

Rehearing Denied October 5, 1933.

Appeal from District Court, Smith County; Walter G. Russell, Judge.

Suit by Wesley Ritch and others, who, after death of J. P. Ritch, continued prosecution of suit begun by J. P. Ritch and others, against Ellen Jarvis and others. From a judgment dismissing plaintiffs' petition, plaintiffs appeal.

Reversed and remanded.

Sam J. Callaway, of Fort Worth, R. Leslie Hedrick, of Salt Lake City, Utah, Gentry & Gray, of Tyler, and Jas. E. Whitmore and Robt. C. Pepper, both of Fort Worth, for appellants.

T. N. Jones, of Tyler, J. W. Timmins, C. A. Toler, Martin A. Row, and T. L. Foster, all of Dallas, and J. A. Bulloch and Butler, Price & Maynor, all of Tyler, for appellees.

JOHNSON, Chief Justice.

Appellants were the plaintiffs and appellees were the defendants in the trial court. The appeal is from judgment of the trial court sustaining a general demurrer to plaintiffs' petition and dismissing the suit. J. P. Ritch, joined by the heirs of his deceased wife, Minnie Ritch, as plaintiffs, filed this suit in the district court of Smith county July 23, 1931. Before the trial J. P. Ritch died, and upon suggestion of his death the suit was prosecuted by appellants, the children and only heirs at law of J. P. Ritch and wife, Minnie Ritch, both of whom died intestate, and the petition further showing no necessity for administration. The petition is a direct attack seeking to vacate a judgment of the same court entered at a prior term in cause No. 1729-A, styled Jarvis & Co., Plaintiff, v. J. P. Ritch, Defendant, wherein Jarvis & Co., by S. Jarvis as the sole owner, obtained a judgment by default against J. P. Ritch, November 7, 1928, divesting out of J. P. Ritch and into S. Jarvis the title to a certain tract of 103.7 acres of land in Smith county, upon pleadings alleging an equitable cause of action for the rescission of the sale of the land, by virtue of Jarvis & Co. being the assignee and holder of two purchase-money notes originating in the sale of the land to J. P. Ritch by one Clay Denton on July 10, 1913. All of the record in cause No. 1729-A is incorporated in the pleadings of the plaintiffs in the present suit. The heirs and legal representatives of S. Jarvis, deceased, as well as all parties claiming interest in the land through conveyance from S. Jarvis under the judgment in cause No. 1729-A, were made parties defendant in the present suit.

Appellants' pleadings attack the judgment in cause No. 1729-A upon two grounds: First, that the judgment is void for alleged matters vitiating it that are apparent of record; and, second, that it is voidable and should be set aside by reason of alleged matters vitiating it, not apparent of record. The ground of attack contending the judgment void by reason of matters apparent of record is directed at the petition upon which the judgment by default was rendered in cause No. 1729-A.

Appellants' several propositions under their assignment of error directed at the deficiency of said petition, by reason of which it is contended that the default judgment for rescission entered thereon is void, may for brevity be stated as asserting that the petition is subject to general demurrer upon grounds vitiating the judgment, in that (1) the petition affirmatively shows that S. Jarvis has no cause of action for rescission upon the facts stated, and (2) that the petition is wanting in allegation of facts sufficient to state a cause of action for rescission.

Regarding the first group of propositions, appellants cite the case of McCamant v. McCamant (Tex. Civ. App.) 187 S. W. 1096, and others. The effect of the holding in the McCamant Case is that a judgment is void rendered upon a petition alleging facts affirmatively showing a legal inhibition preventing recovery upon the facts stated. That is to say, a petition which affirmatively alleges facts showing a legal inhibition preventing recovery upon the facts stated will not support a judgment by default. Such legal impediment so reflected upon the face of the petition may be such as is irremovable, appearing in a suit foreclosing alleged paving lien wherein a petition affirmatively revealed that the property was homestead. Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770. Such inhibition when not disclosed does not render the judgment void, Gehret v. Hetkes (Tex. Com. App.) 36 S.W. (2d) 700; or it may be such that by amendment it is shown to have been removed or waived as was done in the second appeal of the McCamant Case (Tex. Civ. App.) 203 S. W. 118. But the petition in cause No. 1729-A does not allege facts affirmatively showing a legal inhibition or bar to recovery, hence appellants' propositions based upon this ground cannot be sustained.

The nearest approach of the petition in cause No. 1729-A to allegations affirmatively showing a legal inhibition against recovery was that the vendor's lien notes, a part of the contract or conveyance sought to be rescinded, were shown to have become due October 1, 1916-17. If the petition had contained no further allegations in this respect, it having been filed September 27, 1928, more than four years after the notes were due, there would have affirmatively appeared upon the face of the petition that the plaintiff was by statute prevented from proving his cause of action, and legal inhibition against recovery would affirmatively appear upon the facts alleged by reason of Article 5521, R. S. 1925, which was in effect at that time, and provided that vendor's lien notes are conclusively presumed to have been paid after the expiration of four years from maturity. But this impediment was removed by the further allegation of fact and conclusion "that said notes have been renewed and extended and are now valid liens." It is pointed out by appellants that this allegation does not allege they were renewed in writing as required by statute. But this defect could only be reached by special exception, since under general demurrer it would be inferred from the allegation, "and are now valid liens," that they were renewed in a lawful manner.

As to the second group of propositions under appellants' assignment directed at the petition in cause No. 1729-A, contending that it is lacking in allegations of fact sufficient to state the cause of action for rescission, and for such reason the judgment by default based thereon is void, we are of the opinion that the petition is not subject to the criticisms directed at it by these propositions. A judgment not based upon any pleadings is void. Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882. But there is difference between no pleadings, or a petition which from the facts alleged shows affirmatively that plaintiff has no cause of action upon the facts stated, and a petition which is merely lacking in allegations of fact sufficiently to fully state the cause of action. In the latter case it may be subject to a general demurrer and would be reversed upon appeal from an adverse ruling of the trial court. Yet the same petition may be sufficient to prevent a judgment by default from being void; for, if it states the nature of the cause of action determined by the judgment and is of a class over which the court has potential jurisdiction, it invokes the active jurisdiction of the court, and its sufficiency in regard to the fullness of facts is a matter for determination by the trial judge entering the judgment. An error committed by the trial court in its deliberation upon the sufficiency of the petition in this respect would not in legal effect be different from an error committed in rendering the judgment upon insufficient facts proven, and would not render the judgment void. Freeman on Judgments (5 Ed.) vol. 1, § 365, p. 765. However, if the pleadings do not invoke the jurisdiction of the court upon the subject-matter determined by the judgment, it is void. Sandoval v. Rosser (Tex. Civ. App.) 26 S. W. 930; Morgan v. Davis (Tex. Civ. App.) 292 S. W. 610. To illustrate: A judgment in the district court decreeing a divorce could not be sustained upon a petition alleging trespass to try title only. But the petition in cause No. 1729-A does not yield to any of the above criticisms. It is subject to a number of special exceptions. but special exceptions are not grounds for vacating the judgment. When viewed under the liberal rules expressed by the Supreme Court for so determining, the petition in cause No. 1729-A is not subject to a general demurrer. Rule 17 of the Supreme...