Smith v. Pegram

• Decision Date: 04 February 1935
• Docket Number: No. 4346.,4346.
• Citation: 80 S.W.2d 354
• Parties: SMITH et al. v. PEGRAM.
• Court: Texas Court of Appeals

80 S.W.2d 354

SMITH et al. v. PEGRAM.

No. 4346.

Court of Civil Appeals of Texas. Amarillo.

February 4, 1935.

Rehearing Denied March 11, 1935.

Appeal from District Court, Armstrong County; W. E. Gee, Judge.

Action by Allie Pegram against Mabel Smith and another. From a judgment in favor of plaintiff, defendants appeal.

Reversed and rendered.

J. R. Wilson, of Wichita Falls, for appellants.

Underwood, Johnson, Dooley & Huff, of Amarillo, for appellee.

MARTIN, Justice.

This appeal involves the alleged invalidity of a personal judgment against a married woman upon a note executed by herself and husband to secure money to purchase land, and her right to attack same three years after its rendition by a direct proceedings instituted for the purpose of having same vacated.

The essential facts are: On May 6, 1929, Mabel Smith, joined pro forma by her husband, F. E. Smith, filed suit in Armstrong county against "John Pegram and his wife Allie Pegram," alleging, in substance, the execution and delivery by both of a note for $4,400, and describing it fully, and also the execution and delivery by both of a certain trust deed upon land fully described, to secure said note. The prayer was for personal judgment against both on the note and for foreclosure of their said lien.

Answer was by general demurrer, general denial, and by allegations showing a homestead interest in the lands sought to be foreclosed on, and asking specially for cancellation of said trust deed lien.

Judgment was entered against both Pegram and wife on the note for its full amount of principal, interest, and attorney's fees, but in their favor on a foreclosure; the said lien being canceled. No notice of the general demurrer appears to have been taken by the trial court. Neither side appealed. This judgment was entered on April 8, 1930. On March 29, 1933, Allie Pegram filed suit in Armstrong county to vacate said judgment, alleging, in substance: Her divorce from John Pegram since April, 1930; the facts in substance already stated; that the note was not given for necessaries or the benefit of her separate estate; that it was not executed for "any consideration or benefit" to her; that she did not know of its entry until January, 1933; that it was void, and asked for judgment so declaring and for its cancellation. The facts proven correspond with the allegations of her petition. Judgment was entered as prayed for.

It is the general rule that judgments pass beyond the control of trial courts at the expiration of the term when entered. Unless void, they may not be vacated at any subsequent term. 15 R. C. L. p. 690; notes to 81 A. L. R. 300. In Texas, three methods of attacking judgments of the character found here are apparently recognized, viz.:

(1) By the statutory method of appeal or writ of error.

(2) By a proceeding in the nature of a bill of review.

(3) By a direct attack having for its general object a finding that such judgment was void when entered.

It is not pretended, or could be, that this proceeding belongs to either of the first two classes. The first is statutory, and is the exclusive remedy in all matters touching errors of law allegedly committed by the trial court. The second is an equitable proceeding purely. 17 Tex. Jur. p. 28. We cannot, if this be an error of law not affecting the court's jurisdiction, recognize the appellee's right to bring a proceeding, after the lapse of some three years, to have same reviewed, without judicially repealing the appeal and writ of error statute; and this regardless of any such right under the common law. This proceeding belongs manifestly to the third class. We therefore narrow the inquiry to the simple question of whether or not the judgment under attack was void. If yes, this case must be affirmed, and, if no, reversed and rendered.

No authorities have been cited by either appellant or appellee which are exactly in point. Trimble v. Miller, 24 Tex. 214, 215, Covington v. Burleson, 28 Tex. 368, and others of like character cited by appellee, are cases where the attack on the judgment was made in an appeal by writ of error, and plainly are inapplicable. In Lane v. Moon (Tex. Civ. App.) 103 S. W. 211, and in Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537, summary judgments against a married woman, signing respectively a replevy and an appeal bond as surety, were under attack and both were declared void. This obviously for the reason that no cause of action could have been pleaded against a married woman in either case, and such appeared from the face of the record. The very act she did was not authorized, but interdicted by statute. Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567, is of slightly different character, but it too, upon close analysis will appear to be bottomed upon the proposition that no authority in the trial court exists for the entry of a judgment against a minor without the appointment of a guardian ad litem as provided by statute. And so the authorities go, so far as a diligent investigation by us discloses. We have found no case where a proceeding after term time, such as this, to set aside a judgment valid on its face, has been approved, except where the ultimate issue was such as to enable the court to say that authority was lacking in the court to enter such judgment. Why shouldn't this be so? Any other conclusion would lead to the utmost confusion and result in judicially amending our statute authorizing appeals, and open every judgment to suspicion of attack, though the time for appeal has passed.

The petition in the case was subject apparently to a general demurrer. 23 Tex. Jur. p. 324, and authorities there cited. But such defect does not render the judgment void. Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882.

"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 (5th 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." Ritch v. Jarvis (Tex. Civ. App.) 64 S.W.(2d) 831, 833.

If the petition described above had affirmatively shown that the note sued on was void against appellee, and that no cause of action could be based thereon, the judgment under attack here would have been void, in our opinion, under the authorities of Lane v. Moon et al., supra.

Whether or not a simple promissory note of a married woman is void or merely voidable has been the subject of some contrariety of judicial opinion. See Saunders v. Powell (Tex. Civ. App.) 67 S.W.(2d) 402 (writ granted) where these authorities are in part collated. Reconstructing the picture as it was at the time the judgment under attack was rendered, we have a married woman sued on a plain promissory note, with foreclosure of lien on land asked for. She failed to specially except to the petition showing coverture on its face, and instead filed only a general demurrer and denial, and asked affirmative relief upon the foreclosure feature of the case. The general demurrer was apparently not called to the trial court's attention. She, in effect, filed no pleadings raising any defense to the note for reasons best known to her attorneys and herself. It may have been that it was thought wise to not jeopardize her attack upon the lien by filing or insisting upon any plea or exception that relieved her from personal liability on the note. Can she waive the defense of coverture? Can she lead the trial court to believe that she only desires a cancellation of a lien, and thereafter, having obtained this relief, raise, in vacation, the question of liability on the note? Is she subject to the rules which may be invoked against other litigants? Or has the Legislature, acting as a mythological Thetis, dipped her, Achilles like, in the river Styx, so that thenceforth the shafts of the law will fall broken at her feet? She may ratify a void deed. Scales v. Johnson (Tex. Civ. App.) 41 S. W. 828 (writ ref.). She may confess judgment either in person or through an attorney. 23 Tex. Jur. 367. She is bound by a judgment the same as any other litigant, and held to the use of ordinary diligence. Cayce v. Powell, 20 Tex. 767, 768, 73 Am. Dec. 211....