Southern Surety Co. v. Texas Oil Clearing House
| Decision Date | 07 April 1926 |
| Docket Number | (No. 558-4298.) |
| Parties | SOUTHERN SURETY CO. v. TEXAS OIL CLEARING HOUSE et al. |
| Court | Texas Supreme Court |
Proceeding by the Southern Surety Company against the Texas Oil Clearing House and others to enjoin the execution of a judgment. Judgment of the trial court refusing the injunction was affirmed (266 S. W. 529), and plaintiff brings error. Affirmed.
Bullington, Boone & Humphrey and Jno. B. King, all of Wichita Falls, for plaintiff in error.
T. F. Hunter and E. E. Fischer, both of Wichita Falls, W. L. Scott, of Olney, and Charles L. Black, of Austin, for defendants in error.
This was a proceeding by plaintiff in error against defendant in error and others to enjoin the execution of a judgment rendered against it as surety upon a replevy bond in a garnishment suit wherein defendant in error was plaintiff and City National Bank of Wichita Falls, garnishee, was defendant. The trial court refused the injunction and the Court of Civil Appeals affirmed that judgment. 266 S. W. 529. In the main case judgment was rendered for defendant in error Texas Oil Clearing House against Central Stock Exchange, acting through its trustee, D. W. Young, but the validity of that judgment is attacked because the case was tried before W. E. Fitzgerald, a practicing attorney, acting as special judge by the consent and agreement of counsel for all parties to that suit, but who was not elected and sworn to try the case in accordance with the provisions of the statutes, and, furthermore, that at the time he rendered the judgment Hon. Edgar Scurry, the legally qualified judge of the district, was then sitting, for which reason the special judge had no authority to act. The finality of the judgment was also attacked; it being alleged that an appeal had been duly perfected, for which reasons it is contended that the original judgment was void, and this judgment, being dependent thereon, was likewise void.
The opinion of the Court of Civil Appeals discloses that the attorney for the Southern Surety Company, this plaintiff in error, was notified of the rendition of the judgment against that company at the time it was rendered, and that no steps were taken to prosecute an appeal therefrom. The judgment appears to have been rendered by Judge Scurry, the regular district judge. The evidence shows that, though the attorney for plaintiff in error was in the courthouse at the time the judgment was rendered, no effort was ever made to set the judgment aside or to perfect any appeal. There is no contention either in the plaintiff in error's pleading, or in the evidence, that the surety company has any meritorious defense to the suit against it; the sole ground of relief being that the judgment is void because the judgment in the parent case was void for the reasons stated, or at least not final so as to support the judgment in the garnishment case.
By way of a preliminary, we may say we consider this proceeding as a direct attack upon the garnishment judgment rendered against plaintiff in error upon its replevy bond, and therefore the relief sought is available, whether such judgment be absolutely void or merely voidable. Crawford v. McDonald, 33 S. W. 325, 88 Tex. 626; Box v. Pierce (Tex. Civ. App.) 278 S. W. 226.
There has been much laxity in the opinions with respect to the use of the terms "void" and "voidable" as applied to judgments. Strictly speaking, a void judgment is one which has no legal force or effect whatever. It is an absolute nullity and such invalidity may be asserted by any person whose rights are affected, at any time and at any place. It need not be attacked directly, but may be attacked collaterally whenever and wherever it is interposed. Usually it carries the evidence of its invalidity upon its face, while a voidable judgment is one apparently valid, but in truth wanting in some material respect; in other words, one that is erroneous. Such vice may be the want of jurisdiction over the person or other similar fundamental deficiency, but which vice does not affirmatively appear upon the face of the judgment. In this case the judgment attacked being regular upon its face, rendered by a court of competent jurisdiction, and the jurisdictional facts appearing upon the face of the judgment, it cannot be said the same is void. The most that can be said is...
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