Sloan v. Newton

• Decision Date: 16 October 1939
• Docket Number: No. 5067.,5067.
• Citation: 134 S.W.2d 697
• Parties: SLOAN v. NEWTON.
• Court: Texas Court of Appeals

134 S.W.2d 697

SLOAN v. NEWTON.

No. 5067.

Court of Civil Appeals of Texas. Amarillo.

October 16, 1939.

Appeal from County Court, Lubbock County; J. J. Dillard, Judge.

Suit in the nature of an equitable bill of review by M. D. Newton against Tom Sloan to vacate and set aside a judgment by default obtained by defendant against plaintiff. From a judgment for plaintiff, defendant appeals.

Affirmed.

L. A. Prichard and George S. Berry, both of Lubbock, for appellant.

Bean, Evans & Bean, of Lubbock, for appellee.

STOKES, Justice.

This is a suit in the nature of an equitable bill of review, its object being to vacate and set aside a judgment by default obtained by appellant against appellee in the county court of Lubbock County on the 20th of September, 1933. The record discloses that at the July term, 1933, of the county court, appellant, Tom Sloan, filed a suit against appellee, M. D. Newton, in which he alleged that on or about the 26th of August, 1931, at the special instance and request of appellee, he had loaned to appellee the sum of $300, to be repaid upon demand. No note was executed. Appellant, in his petition, acknowledged a credit of $23 and prayed for judgment for the balance due him of $277, with interest and costs of suit. The record does not reveal any reason why the cause was not disposed of at the July term, but judgment by default was entered against appellee at the September term, 1933, for the amount sued for.

Appellee filed this suit against appellant on the 17th of February, 1938, alleging in substance that, in 1931, he borrowed $300 from appellant and that he paid thereon the sum of $24.15. He alleged that prior to the filing of the original suit, he had furnished appellant with a house in which to live in the city of Lubbock and that appellant had lived in the house for more than a year at the time the former suit was filed. He alleged that immediately upon being served with citation in the former suit he went to appellant and had a conversation with him in which he expressed to appellant his surprise that appellant would bring suit against him on the claim when appellant was living in his house without paying any rent; that appellant acknowledged he had been hasty in filing the suit and that in the conversation it was agreed between them that in consideration of the rental of the premises appellant would cancel the indebtedness, dismiss the suit and the controversy was there settled between them. He alleged further that appellant continued to live in the house and resided there eighteen months which, according to the agreement between them, settled and discharged the indebtedness in full.

Appellee further alleged in the instant suit that, notwithstanding his agreement to dismiss the original suit in consideration of the rental of the premises, appellant appeared in court on the 20th of September, 1933, and obtained a judgment against appellee for the full amount for which he had sued, together with interest and costs of suit. He alleged that he did not know appellant had procured judgment against him until February 7, 1938, when appellant caused to be issued upon the judgment a writ of garnishment against the First National Bank of Lubbock in which appellee maintained a deposit.

Appellant answered only by general demurrer and general denial.

The case was submitted to a jury upon special issues and the jury found in effect that appellant and appellee, after the filing of the original suit and before appearance day, discharged the debt by a settlement and it was agreed between them the suit would be dismissed; that appellee relied upon such agreement in failing to appear and answer in the original cause; that appellee did not know the judgment had been rendered against him until February, 1938; that appellant agreed to dismiss the original suit after citation had been served on appellee and prior to the time the judgment was entered; that appellant was guilty of fraud in taking the judgment against appellee, and that appellee had fully paid off and discharged the debt owing to appellant in the $300 loan.

The trial court entered judgment against appellant cancelling the original judgment, to which appellant duly excepted and gave notice of appeal, which he has duly perfected.

The principal contentions made by appellant are, first, that the court committed reversible error in overruling his general demurrer. Secondly, that appellee did not allege nor prove fraud on the part of appellant in procuring the original judgment and, therefore, his general demurrer should have been sustained and appellee was not entitled to recover. Thirdly, that appellee was not entitled to recover because his claim was barred by the statute of limitations the suit not having been filed until more than four years after the original judgment was entered, and, fourthly, the court erred in refusing to submit his special issue No. 3 as to the reasonable rental value of the premises belonging to appellee and occupied by him as tenant.

The substance of the first contention of appellant is that his general demurrer should have been sustained because appellee failed to exhibit in his pleadings the entire proceedings in the original case sought to be reviewed. We think under our rules of pleading the petition is sufficient as a basis for the introduction of the record in the former suit. The petition and process in that suit were not copied in the petition in the instant case nor were copies of them attached as exhibits, but we do not understand the rules of pleading to require that the record in the former suit be completely exhibited by the petition seeking a bill of review. The petition alleges the filing of the original suit by appellant and gives the number of the cause on the docket of the county court. It states the nature of the cause of action alleged therein and the amount for which appellant demanded judgment. It alleges further that appellee was served with citation in the original cause and that judgment by default was entered against him on the 20th of September, 1933, reciting the volume and page of the minutes of the court wherein the judgment was entered of record. Copies of plaintiff's petition, the citation served upon appellee, and the default judgment entered against him were introduced in evidence and were before the court when the instant case was tried. The record does not show that these constituted the entire record in the original suit but ordinarily where judgment is rendered by default, records of the case do not contain any documents other than these. In our opinion the petition was not subject to the criticism offered by app...