Wallis v. Stuart

• Citation: 50 S.W. 567
• Parties: WALLIS et al. v. STUART.
• Decision Date: 10 April 1899
• Court: Supreme Court of Texas

50 S.W. 567

WALLIS et al. v. STUART.

Supreme Court of Texas.

April 10, 1899.

Certified questions from court of civil appeals of First supreme judicial district.

Action by A. E. Stuart against Wallis, Landes

& Co. to set aside a judgment. There was a judgment for plaintiff, and defendants appeal to the court of civil appeals, which certifies questions to the supreme court. Questions answered.

Davidson, Minor & Hawkins, for appellants. W. F. Hays, for appellee.

GAINES, C. J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and questions:

"On September 18, 1894, the appellants recovered a judgment against the appellee in the county court of Galveston county in a suit for the value of merchandise sold by them to him. The appellee filed this suit on May 31, 1897, in the court in which the judgment against him was rendered to set aside that judgment. The only ground alleged in the petition for setting aside the judgment is that appellee was a minor when it was rendered, and that the merchandise sold to him by the appellants was not necessaries, but was bought by him for the purpose of carrying on business as a merchant. The petition showed that appellee became of age May 14, 1897, and that for some time prior thereto he had not had possession of the said goods, nor any of the proceeds thereof. Demurrers to the petition were overruled. Evidence was heard which showed the above-alleged facts to be true. It also appeared from the evidence that, at the time the appellants brought their suit against the appellee, they knew that he was a minor, but brought their suit as against a person sui juris, without taking any notice of his minority, or having a guardian ad litem appointed to represent him in the suit. The appellee was served with process, but failed to answer, and judgment was rendered against him as on default. The record in that suit nowhere discloses the fact of the appellee's minority. The court instructed the jury that they should find for the plaintiff, unless they believed from the evidence that he made fraudulent representations to the appellants, as to his age, when the goods were purchased. No issue as to fraud in the procurement of the judgment was raised by the pleadings or submitted to the jury.

"The following questions are certified for the decision of the supreme court:

"(1) Having failed to appeal or sue out a writ of error, can the appellee maintain this suit to set aside the judgment? Since the record did not disclose the fact of his minority at the time of the judgment, he could not have had it reversed on appeal or writ of error. (2) If the first question is answered in the affirmative, was the petition sufficient to entitle the appellee to have the judgment set aside upon the bare allegations for cause that he was a minor when the judgment was rendered, and that the merchandise was not for necessaries, without alleging fraud in the procurement of the judgment, or some equitable reason therefor? (3) The evidence having shown that appellants were aware of appellee's minority when they brought their suit, if it should be held that the petition is insufficient, is the evidence sufficient to have the case remanded to enable the appellee to amend his petition, and have the issue of fraud in the procurement of the judgment submitted to a jury? Would the fact of the knowledge of appellants, when they sued him as sui juris and took judgment against him by default, knowing that he was a minor, be sufficient evidence of fraud in the procurement of the judgment to be submitted to the jury?"

The appellants have filed a motion to dismiss the certificate on the ground that this court is without jurisdiction to answer the questions, and in support of the motion we are cited to the case of Herf v. James, 86 Tex. 230, 24 S. W. 396. That was a certificate of dissent sent up under the provisions of section 32 of the act of April 13, 1892, for the organization of the courts of civil appeals, which section is now article 1040 of the Revised Statutes. The case in which the certificate was sent up was one over which, as prescribed by the statute, the jurisdiction of the courts of civil appeals was final. Since section 34 of the act mentioned (now article 1042 of the Revised Statutes) provided that the decision of this court should "be entered as the judgment of the court of civil appeals," it was held that sections 32, 33, and 34, in regard to certificates of dissent, did not apply to cases over which the jurisdiction of the court of civil appeals was final. In other words, the court was of opinion that there was an inconsistency in the two provisions, which should be reconciled by holding that the sections relating to certificates of dissent were not intended to apply to cases which were subject to final determination in the court of civil appeals. The questions before us arise, it is true, in a case in which this court has no power to grant a writ of error; but they are not certified under article 1040 of the Revised Statutes, but under article 1043. The latter article reads as follows: "Whenever in any case pending before the court of civil appeals there should arise an issue of law which said court should deem it advisable to present to the supreme court for adjudication, it shall be the duty of the presiding judge of said court to certify the very question to be decided by the supreme court, and...