author: CURETON, C. J.

text:
    STATE MORTGAGE CORPORATION v. TRAYLOR.
    No. 17938.
    Supreme Court of Texas.
    March 4, 1931.
    Thomson, Dilworth & Marshall, N. W. Palmer, and Fred Russi, all of San Antonio, for plaintiff in error.
    Nelson Dytle, of San Antonio, for defendant in error.
   CURETON, C. J.

This case is before us on application for writ of error. We have concluded that the district court and the Court of Civil Appeals entered correct judgments, and that the application for the writ should be refused. Our reasons for this conclusion will now be stated.

The opinion of the Court of Civil Appeals is reported [32 S.W.(2d) 887], and a complete statement ,of the case is unnecessary. The suit was filed by the plaintiff in error, the State Mortgage Corporation, in one of the district courts of Bexar county, against Mrs. Maude B. Traylor and other parties to remove cloud and quiet title to certain real estate in Bexar county in the plaintiff in error. The parties answered, and, after formal answer, the defendant in error, Mrs. Maude B. Traylor, stated, in substance, that she was the owner of the property and had good title to it, that the plaintiff’s claim was a cloud upon her title, and she prayed for its removal. She also alleged that the plaintiff claimed the property under a chain of title commencing with certain foreclosure proceedings had by the state of Texas in a tax suit in the district court off Bexar county. She asserted that the tax judgment and proceedings thereunder were void. Upon trial in the district court, judgment was entered in favor of Mrs. Traylor for title and possession of the land in controversy, which judgment was affirmed by the Court of Civil Appeals. The trial court made elaborate findings of fact and law, which were adopted by the Court of Civil Appeals. That court made a very brief clear statement of the facts, and we will adopt its statement, with such additional facts taken from the findings of the trial court as may be necessary in this opinion. The statement of the Court of Civil Appeals in part is as follows:

“The facts established are that there were two C. H. Browns, one of whom lived and died in Bexar county, and the other lived in Calhoun county at the time he acquired the land in which county his deed to the same recited his residence to be. He moved from Calhoun county to Kerr county, where he died. He never lived in Bexar county.
“The other C. H. Brown lived in Bexar county all the time, and died in that county, but before he died was served with process in said suit in Bexar county, for the taxes alleged to be due the state and county. He ignored the service of citation served on him and paid no attention thereto because he did not own the land, and the other C. H. Brown, the owner of the land, who lived in Calhoun county and Kerr county, was never served, was never a party to the judgment, and had no knowledge of the tax suit or the judgment. The citation shows upon its face that it was made upon the C. H. Brown living at 317 Roseborough, San Antonio, Tex., whose name was so listed in the city directory, and who paid no attention to the citation. Neither C. H. Brown, who lived and died in Kerrville, nor his wife, Lara Brown, and Mrs. Maude B. Traylor, had any notice or knowledge of the tax suit and judgment until a long time after the attempted sale of the property under the pretended tax judgment.
“Mrs. Maude B. Traylor, claims title to the property under deed from Mrs. Lara Brown, survivor of the community estate of O. H. Brown, who died at Kerrville. * * *
“The order of sale and sheriff’s deed recite that notice was mailed to O. H. Brown, 307 Roseborough, as defendant.
■ “It was shown that O. H. Brown, the owner of the property when tax suit was filed, was, at the time of his purchase of the lots, a resident of Calhoun county, Tex., which is so recited in his deed of record in Bexar county, Tex., that said C. I-I. Brown resided in Calhoun county for a year or two after he acquired title to the lots in controversy, when he .moved to Kerr county, Tex., and at all times thereafter was a resident of Kerr county, Tex., where he went on account of having developed tuberculosis, and was an invalid confined to his room and bed, and that he was continuously so confined for several years from the time he moved there until the time of his death.”

In addition to the foregoing, the facts found show that the petition in the tax foreclosure suit alleged that the residence of C. H. Brown, the defendant in that suit, was in Bexar county. The judgment recites that “the defendant, although duly cited, came not but wholly made default.” etc. The judgment does not show the residence of the C. H. Brown against whom it was entered.

The insistence of the plaintiff in error is that the defense and cross-action of Mrs. Traylor involves a collateral attack on the judgment rendered in the tax foreclosure suit under which it claims, and are therefore not admissible in this case. It is obvious that Mrs. Traylor’s defense and cross-action for affirmative relief do not make a direct assault upon the tax foreclosure decree, and in that sense they do constitute a collateral attack on the judgment. 15 Ruling Case Law, pp. 838, 839, §§ 311, 312; Freeman on Judgments (5th Ed.) vol. 1, §§ 304, 306; Black on Judgments (2d Ed.) vol. 1, § 252. However, it does not follow that Mrs. Traylor cannot assert her title in this action, for reasons now to be stated.

This court has always held that a judgment rendered against a defendant without citation or service upon him, or appearance by him, is a nullity. Levy v. Roper, 113 Tex. 356, 360, 256 S. W. 251. However, in cases where the judgment is rendered without citation and service in fact, but recites that serv--ice was had, we do not permit the defendants not served to attack or impeach the verity of the judgment in a collateral proceeding. This rule has been adopted, not because the judgment is valid, but because, as a matter of public policy, in the interest of the sanctity of court decrees, we require the defendant to bring a direct action to set aside the judgment because of its invalidity. Levy v. Roper, 113 Tex. 356, 360, 361, 256 S. W. 251. The rule just stated obtains where the Judgment itself declares that service was had, or that the defendant appeared, and where, of course, the judgment roll does not on its face carry the evidence of its own infirmity. However, in the instant case, the rule has no application. The judgment in the tax foreclosure suit entered a decree against “the defendant G. H. Brown,” after having recited that “the defendant, although duly cited, came not,” etc.

In this case, because of the fact that there were two men of exactly the same initials and name, one living in the county where the land was situated, the other, the real owner, living in a different county, and the judgment itself failing to recite the place of residence of the defendant, and containing nothing to ' show which person was intended to be affected by it, is necessarily ambiguous as to which person was bound thereby.

In the case of ambiguous judgments, the rule is elementary in this state that recourse may be had to the pleadings to ascertain against whom the decree runs. Dunlap v. Southerlin, 63 Tex. 38, 42; Hays v. Yarborough, 21 Tex. 487; Hamilton v. Ward, 4 Tex. 355, 361; Craddock v. Edwards, 81 Tex. 609, 613, 17 S.W. 228; Croom v. Winston, 18 Tex. Civ. App. 1, 43 S. W. 1072, 1074 (writ refused); Texas Savings-Loan Ass’n v. Banker, 26 Tex. Civ. App. 107, 61 S. W. 724 (writ refused); Richardson v. Trout (Tex. Civ. App.) 135 S. W. 677, 679 (writ refused).

In the case of Dunlap v. Southerlin, supra, the suit was brought by John M. Southerlin, William T. Southerlin, James R. Warren, and James F. Callaway, composing the firm of Southerlin, Warren & Oo. The judgment actually entered simply ran in favor of “the plaintiff” and against “the defendant,” but the caption read, “L. S. Southerlin v. S. M. Dunlap.” There was nothing in the record which connected L. S. Southerlin with the case except his name in the caption of the judgment. This court, in an opinion by Chief Justice Stayton, then associate justice, held the judgment in favor of L. S. Southerlin void, and in so doing stated the entire record could be examined to ascertain the parties in favor of or against whom the judgment was rendered. In part Chief . Justice Stayton said:

• “Every judgment when ambiguous as-to the party or parties in favor of or against whom it is rendered, must be read in the light of the entire record in the case, which, in the sense here used, embraces the pleadings. Wilson et al. v. Nance et al., 11 Humph. [Term.] 191; Fowler v. Doyle, 16 Iowa, 535; Bell v. Massey & Poultney, 14 La. Ann. 831; Leviston y. Swan, 33 Cal. 484; Finnagan v. Manchester, 12 Iowa, 522; Beers v. Shannon, 73 N. Y. 297; Hays v. Yarborough, 21 Tex. 489; Little v. Birdwell, 27 Tex. 692.
“The judgment is in favor of the plaintiff; such is not shown to have been L. S. South-erlin. The cause of action was one which accrued to the persons whose names were given as the plaintiffs in the petition, and there is nothing to show that any other person had any interest whatever in it. The persons who are to have execution are designated by the words ‘they’ and ‘their.’
“Looking to the whole record, there can be but little, if any, doubt that the name of L. S. Southerlin was inserted in the caption to the judgment through inadvertence.
“A judgment rendered against a person not before the court would be void, and it is not perceived that a judgment against a defendant in court at the suit of named plaintiffs, upon a cause of action accruing to them alone, in favor of a person in no manner a party to the action, can stand upon any higher ground.
“Courts have no more power, until their action is called into exercise by some kind of pleading, to render a judgment in favor of any person than they have to render judgment against a person until he has been brought within the jurisdiction of the court in some method recognized by law as sufficient ; and it never will be presumed, in the face of a record which shows that certain named plaintiffs were seeking and entitled to a judgment, that the court rendered a judgment in favor of some person not shown to be before it seeking relief.” (Italics ours.)

An examination of the pleadings in the tax foreclosure suit here involved shows that O. JS. Brown of Bexar county was the C. H. Brown who was sued. It is obvious then that the “defendant” referred to in the judgment as “the defendant C. H. Brown” and “the defendant, although duly cited, came not,” was the defendant named in the petition ; that is C. H. Brown of Bexar county. Moreover, we are of the opinion that other portions of the record may be examined for the purpose of ascertaining the person against whom the judgment was entered. Dunlap v. Southerlin, supra; Freeman on Judgments (5th Ed.) vol. 1, §§ 77, 80, 81, 82; 15 Ruling Case Law, p. 895, § 374; Little v. Birdwell, 27 Tex. 689, 692; authorities supra. ■

The general authorities support the statement made by Chief Justice Stayton that, in case of ambiguity as to the parties to a judgment, the “entire record in the case” may be examined for the purpose of determining against whom or in whose f^vor the decree was rendered. Mr. Freeman in the sections from his work in part says:

“If the entry of a judgment is so obscure as 'not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to' the entire record. If; with the light thrown upon it by them, its obscurity is dispelled, and its intended signification made apparent, it will be upheld and carried into effect. In case of doubt regarding the signification of a judgment, or of any part thereof, the whole record may be examined for the purpose of removing the doubt. One part of the judgment may be modified or explained by another part; and uncertainties in the judgment may become certain under the light cast upon them by the pleadings or other parts of the record. * * * So the uncertain or general designation of the persons for or against whom the judgment is rendered, as where they are referred to merely as plaintiffs or defendants, may be made certain and definite by reference to the remainder of the record where this clearly indicates the persons intended to be affected.” Freeman on Judgments, supra, § 77.

The text cited also states:

“The designation of the parties for and against whom the judgment is given must in all cases be sufficient to enable the clerk to know at whose instance to issue execution, and against whose property it may be properly enforced. Hence a judgment for or against the captain and master of the steamer ‘Mollie Hamilton’ or the legatees of Philip Joseph, or against a defaulting 'witness by his proper name, but not stating in whose favor, is insufficient, if the whole record or judgment-roll does not clearly disclose the parties for and against whom the judgment is given. On the other hand, it is equally well settled that the names of the parties need not be stated in the body of the judgment if they are otherwise indicated in some other way which is sufficiently certain. The name of the firm may be given, instead of the names of its individual members, or the parties may be designated generally as the plaintiffs or the defendants, provided a reference to the caption, or to the -pleadings, process, and proceedings -m the action, makes certain the names of the parties thus designated.” (Italics ours.) Freeman on Judgments, supra, § 80.

Again Mr. Freeman says:

“It has already been seen that uncertainties or ambiguities in the judgment may often be cleared up and its apparent scope and effect limited or controlled by the remainder of the record, and that this principle is applied to general terms designating the parties. Thus the fact that the plural ‘defendants’ is used does not prevent a construction of the term to exclude some of them where other portions of the record require it. Though the judgment purports to be against the defendants, without naming them, only one of them will be bound, if it appears from the context that only be was meant, or from the return of the service of process that only be was brought within the jurisdiction of the court.
“In all cases where the expression in the judgment is general, it will be confined to the parties served with process. Thus where there are two defendants, one of whom is served with process and pleads, and the judgment entry recites that the parties came by their attorneys, it will be intended that no one came but he who had been summoned and had pleaded.” (Italics ours.) Freeman on Judgments, supra, § 81.

The authority cited continues:

“As elsewhere suggested, every judgment may be construed and aided by the entire record. This is true with respect to errors and uncertainties in the names of the parties in rendering or entering judgment, which are ordinarily regarded as merely clerical when they may be corrected in this way.” Freeman on Judgments, supra, § 82.

In view of the authorities just referred to and quoted from, we are of the opinion that the trial court was justified in examining not only the petition filed in the tax suit, but the process issued and the return thereon, for the purpose of ascertaining who was actually sued and served with citation. This conclusion in no manner conflicts with that of this court in the case of Treadway v. Eastburn, 57 Tex. 209, where an -altogether different question was presented. An examination of the record shows that' the citation in the tax suit was issued against O. B. Broion of Bexar county, and O. B. Brown of Bexar county was the C. H. Brown actually served.

On the judgment in the tax foreclosure suit, an order of sale was issued and sale made, and the property purchased in by a remote vendor of the plaintiff in error. The order of sale and sheriff’s deed referred to recite that notice was mailed “to O. H. Brown, 307 Rose-borough,” as defendant. 307 Roseborough is, and was then, a residence in the city of San Antonia, Tex., and was occupied by a man by the name of O. H. Brown. So then there can be no doubt whatever that O. B. Broion of Bexar County was the party against whom the state’s tax suit was brought, was the O. H. Brown to whom citation issued, and who was served with process, against whom judgment was decreed in that suit, and whose title, if any he had, was divested out of him by the sale of the property for taxes and its purchase by the vendor of -the plaintiff in error. On the other hand, it is equally certain that C. B. Broion of Kerr county, formerly of Calhoun county, who actually owned the land, was not sued, was not named as a party defendant in the petition, had no process issued for him, was not cited, and had no judgment whatever entered against him; that he knew nothing of the suit, did not appear; and was in truth and in fact a stranger to the judgment, the validity of which is invoked against the vendee of his community survivor.

The rule is an elementary one that strangers to a judgment, that is, those who are not parties or privies to the proceeding, may, when their interests are adversely affected by the judgment, impeach it whenever it is attempted to be enforced against them. They may not, of course, avoid it for a mere error or irregularity, but they may collaterally attack it where it is void as to the party making the attack for want of jurisdiction, as in this ease. Freeman on Judgments (5th Ed.) vol. 1, §§ 317, 318; Black on Judgments (2d Ed.) vol. 1, §§ 260, 278; Sanger Bros. v. Trammell, 66 Tex. 361, 1 S.W. 378; Ferrell-Michael Abstract & Title Co. v. McCormac (Tex. Civ. App.) 184 S. W. 1081, 1089; Turner v. Maury (Tex. Civ. App.) 224 S. W. 255, 258 (writ refused).

We are of the opinion, as stated above, that O. B. Brown of Kerr county was a stranger to the judgment rendered in Bexar county against C. B. Brown of Bexw' county; that the judgment was and is not binding on him, and was and is not binding on Mrs. Traylor, who holds under him. 15 Ruling Case Law, p. 849, § 323, pp. 839, S40, §§ 312, 314; Flowers v. King, 145 N. C. 234, 58 S. E. 1074, 1075, 122 Am. St. Rep. 444; Schneitman v. Noble, 75 Iowa, 120, 39 N. W. 224, 9 Am. St. Rep. 467; Savings Bank of St. Paul v. Authier, 52 Minn. 98, 53 N. W. 812, 18 L. R. A. 498; Coffin v. Bell, 22 Nev. 169, 37 P. 240, 58 Am. St. Rep. 738; Scales v. Wren, 103 Tex. 304, 127 S. W. 164; Green v. Robertson, 30 Tex. Civ. App. 236, 70 S. W. 345, 346 (writ refused) ; Freeman v. Hawkins, 77 Tex. 498, 14 S. W. 364, 365, 19 Am. St. Rep. 769; McRee v. Brown, 45 Tex. 503; Wofford v. Booker, 10 Tex. Civ. App. 171, 30 S. W. 67.

In the ease of Scales v. Wren, supra, decided by the Supreme Court, W-fen brought suit in the district court of Hartley county against Scales and others, for trespass to try title to 175 acres of land. Wren had a regular chain of transfers from the state down to himself, all of which were recorded. The deed to Wren stated that he was a resident of Travis county, just as in the case before us the deed to C. H. Brown, subsequently of Kerr county, stated' that his place of residence at the time of the execution of the deed was in Calhoun county. In the Wren Case, Seales defended under a title derived from a sale of the property under a judgment for taxes against “the unknown owner.” The Supreme Court held'that the tax judgment was void as to Wren, that the suit and judgment against “the unknown owner” did not conclude nor bind Wren, the real owner, whose place of residence was Travis county. In part the Supreme Court, through Chief Justice Gaines, said:

“The statute authorizes a suit against the ‘unknown owner’ of the land, and not against an owner who is known, and whose name and residence could have been discovered upon proper inquiry. Hence a judgment against the unknown owner does not conclude the title of one who is known, or can be known. No one can doubt that the judgment is conclusive as between the state and the unknown owner; but here we have a case in which the owner was known, or could have been known by the slightest diligence. The known owner is entitled to his day in court, and to be heard on defense, of his rights. He is entitled to service of citation if he be within the jurisdiction of the court. Not having been served with process, and being within the jurisdiction of the court, and not being an unknown owner, he was not a party to the proceedings, and we fail to see how he can be concluded by the judgment.”

Ruling Case Raw states the rule as follows:

“Even where there is service of process it must be substantially in accordance with the requirements of the law, and when the service of process is insufficient and unauthorized by law, the court does not acquire jurisdiction, and the judgment rendered is without validity, force or effect, as, for example, where notice is served, on the wrong person, although of the same name as the defendant, even if the party served on discovering the mistake mails to the defendant the copy of the summons served upon him, with a letter explaining the matter.” (Italics ours.) 15 Ruling Case Law, p. 849, § 323.

In the case of Freeman v. Hawkins, cited above, Mrs. Freeman prior to her marriage had acquired certain real estate by deed, executed in her maiden name of Mary E. Robinson. Some time after her marriage, however, to Mr. Freeman, the vendor of Hawkins brought suit in the county where the land was situated against Mary E. Robinson. Service was had in that suit by publication, and judgment rendered in favor of the plaintiff in the action against “Mary E. Robinson.” This court, in a subsequent suit between the ven-dee of the plaintiff in that action and Mrs. Freeman, held thát Mrs. Freeman was not bound by the judgment, and in part said:

“We are of opinion that a citation by publication requiring ‘Mary E. Robinson’ to be cited and to appear was not sufficient to give the court jurisdiction to render a judgment that would bind ‘Mary E. Freeman.’ McRee v. Brown, 45 Tex. 506.
“If there had been actual service on Mrs. Freeman, under the name of ‘Mary E. Robinson,’ it might have been her duty to appear, even though cited in the wrong name, and although her husband was not made a party defendant with her; but the case before us is one in which she was only cited by publication issued on the ground that she was a nonresident of the state, which was untrue. She had no knowledge of the pendency of the suit against ‘Mary E. Robinson,’ or opportunity to defend it. She was not a party to the suit, and is not bound by the judgment; and it should not have been admitted for any purpose. Dunlap v. Southerlin, 63 Tex. 38.”

In the case of Green v. Robertson, cited above, in which writ of error was refused, the Court of Civil Appeals held that a judgment for taxes against the unknown heirs of a former owner is void as to the owner under grant from the deceased who had no notice of the suit, and was subject to collateral attack. The facts were briefly as follows: Prior to September 26, 1893, John 0. Robertson and wife owned the land. On that datq, however, they conveyed to their son S. G. Robertson, but the deed was not filed for record until December 1, 1900. In 1898, after the death of John.C. Robertson, a tax suit was brought against “the unknown heirs of John G. Robertson" for taxes due for the years 1889 and 1894, and judgment entered for the taxes and foreclosing the lien. The land was sold for taxes under this judgment, and bought in by certain parties who subsequently conveyed to Green and another for a substantial consideration. The Court of Civil Appeals held the judgment void and subject to collateral attack by S. G. Robertson, the real owner of the land. In part the court said:

“It is true that the judgment in the tax suit was a judgment against the land, and was rendered by a court of competent jurisdiction of the subject-matter of the suit, but this does not make it a valid judgment against the owner of the land, who was not made a party to the suit, and had no notice that such suit was pending until long after the judgment therein was rendered. The undisputed evidence shows that, at the time the tax suit was filed, defendant in error was the owner of the land. The delinquent tax record of Anderson county, upon which the suit was brought, designates defendant in error as the owner; and yet he was not made a party to the suit, and no notice of any kind was given him of its institution. * ⅜ * 'We think it clear that a judgment for taxes against the unknown heirs of John C. Robertson is absolutely void as to the owner of the land against which the taxes were adjudged, who had no notice of the suit, and who owned the land, not as an heir of John C. Robertson, but by purchase long prior to the bringing of the suit. * * * It is unnecessary to cite authority upon the general proposition that no person can be held bound by a judgment in a suit to which he was not a party, and of which he had no notice. To hold otherwise would be in violation of a fundamental principle of our system of jurisprudence, and in direct conflict with the constitutional provision which guaranties that no person shall be deprived of property except by due course of law. The defendant in error, not being a party to the suit in which the judgment of foreclosure was rendered against his land, is not bound by such judgment. As to him, such judgment is void, and the. rule xoMch forbids a collateral attach upon the judgment of a court of competent jurisdiction had no application, for the reason that no court has jurisdiction competent to establish a lien upon the property of a person ufho is not a party to the suit in which such lien is sought to be fixed, and is not given an opportunity to be heard in defense of Ms property rights." (Italics ours.)

In the case of McRee v. Brown, 45 Tex. 503, supra, this court held that a citation by publication of McKee would not support a judgment against McRee. In that case Associate Justice Moore, in the opinion for the court, in part said:

“While it is undoubtedly true, as was said by Justice Lipscomb in the case of McClelland v. Smith, 3 Tex. 210, that the stringency with which the rule as to a variance between the cause of action declared on and the evidence offered to support-it has been greatly relaxed by the more recent decisions, in the English as well as American courts, from the rigidity with which it was formerly adhered to and enforced, yet we have been cited by the defendant in error to no case, and we think none can be found, which" will sustain a judgment by default against Robert McRee, on citation by publication to Robert McKee. There-is, indeed, in our opinion, a palpable distinction and marked difference in the question presented by the objection of variance between the instruments offered in evidence and described in the pleading and that which has to be determined, when it is claimed that the party against whom judgment has been rendered by default is not the same person to • whom citation was issued and upon whom constructive service has been made by publication.”

The ease of Flowers v. King, supra, from the Supreme Court of North Carolina, is directly in point. In that case it appeared from the facts found by the judge on the hearing that the defendant had been ejected from a piece of land by virtue of final process of the court, issued on a judgment by default in the case; the original process having been served on a different man of the same name as the defendant. In regard to service on the defendant, the court found the facts to be that the summons had never been served upon the real defendant, Lewis King, a negro, and that Lewis King had never entered an appearance in the suit, either in person or by an attorney, and had no knowledge of the action until the writ of possession was served upon him. The Supreme Court held that the judgment was absolutely void, and could. be set aside on motion of the defendant, or treated as a nullity whenever the lack of jurisdiction was made to appear. In part the court said:

“On these facts it is well established with us that the judgment against the defendant is absolutely void, and may be set aside on motion of defendant or treated as a nullity when and wherever the entire lack of jurisdiction is made to appear. Card v. Finch, 142 N. C. 140, 54 S. E. 1009; Carter v. Rountree, 109 N. C. 29, 13 S. E. 716; Doyle v. Brown, 72 N. C. 393; Deep River Copper Co. v. Martin, 70 N. C. 300; Black on Judgments, § 307.”

The authorities cited are conclusive of the question that the .tax judgment and proceedings thereunder were void as to O. K. Brown of Kerr county; and, being void as to him, the plaintiff in error has no title whatever to the property involved. Since Mrs. Traylor holds the title of O. H. Brown of Kerr county, she is in the same position to show the void character of plaintiff in error’s title as Brown would be were he living. 15 Ruling Case Law, p. 839, § 312; Freeman on Judgments (5th Ed.) vol. 1, §§ 318, 319, 322; Coffin v. Bell, 22 Nev. 169, 37 P. 240, 58 Am. St. Rep. 738, 741; People v. Mullan, 65 Cal. 396, 4 P. 348.

- The Court of Civil Appeals discussed other questions disposed of by the trial court, but, since we have concluded that the title of Mrs. Traylor is superior to that of the State Mortgage Corporation, which rests upon a judgment not binding upon O. K. Bmvn of Kerr county, through whom she claims, we have found it unnecessary to consider any other question in the case.

For the reasons stated, the application for writ of error is refused.


source: Caselaw Access Project

author: RYAN, J. CURETON, C. J.

license: Public Domain

text:
    ASKEY v. POWER et al.
    No. 1223-5588.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    John L. Poulter, of Fort Worth, for plaintiff in error.
    C. T. Gettys and Burch & Woodruff, all of Decatur, for defendants in error.
   RYAN, J.

On December 1, 1923, plaintiff in error recovered .judgment in the district court of Wise county, against D. L. Power, for the principal sum of $3,540.40 (and costs of suit), with 10 per cent, per annum interest on $2,278.80 thereof, and 8 per cent, per annum interest on $538.30 thereof, and 6 per cent, per annum interest on $401.48 and on $321.64 thereof. The judgment foreclosed a chattel mortgage lien on certain personal property in Wise county, given by Power to secure said indebtedness.

Order of sale issued on said judgment, by virtue of which the sheriff of Wise county, on June 2, 1924, levied on and took possession of said personal property and on the same -day advertised the same for sale on June 14, 1924. At the sale, plaintiff in error, being the highest bidder, bought said personal property for the sum of $375. The sheriff’s .return shows that “said Askey having paid the sum so bid by him, the said property was delivered into his possession.” The sheriff’s return further shows that after satisfying his own and the original court costs, the balance remaining, $245.25, was paid to Askey, and the writ returned on June 20, 1924.

Plaintiff in error’s pleadings aver, and the proof shows, that D. L. Power died intestate, on or about June 8, 1924.

On December 4, 1923, an abstract of said judgment prepared by the district clerk of Wise county was filed, recorded, and indexed by the county "clerk in the judgment lien records of Wise county.

No serious complaint is urged against the form of the abstract of judgment as prepared • by the district clerk, but as it was, actually recorded by the county clerk, “the amount of credits” (stated.in the original abstract to be “none”) shows several items, which, when added, aggregate $3,540.22, or within 18 cents of the amount of the judgment; neither is the rate of interest shown in the appropriate column. A copy of the original abstract and a copy of the record thereof as made by the county clerk in the judgment lien record are shown in the opinion of the Court of Civil Appeals, 21 S.W.(2d) pages 328 and 329.

The right to a judgment lien is purely statutory, and the statute must be substantially complied with before the lien will attach. Anthony v. Taylor, 68 Tex. 403, 4 S. W. 531; Belbaze v. Ratto, 69 Tex. 636, 7 S. W. 501; Evans v. Frisbie, 84 Tex. 341, 19 S. W. 510. One of the statutory requirements is that the abstract must show the; amount still due upon the judgment, and another is that the rate of interest specified must also be shown. Rev. St. 1911, art.'5612; Rev. St. 1925, art. 5447.

No lien attaches until the abstract has been properly recorded and indexed. Rev. St. 1911, art. 5616; Rev. St. .1925, art. 5449.

The object ‘of recording the abstract is to give notice of the existence of the judgment. Vidor v. Rawlins, 93 Tex. 259, 54 S. W. 1026. In Noble v. Barner, 22 Tex. Civ. App. 357, 55 S. W. 382 (writ of error denied), the original abstract of judgment showed the date of a certain credit to -be October 27,1885, but in the record it is stated as of date October 27, 1889. It was contended that the original abstract correctly showed the date of such credit, and although the clerk made a mistake in recording, yet tf the credit be applied as of the correct date, the amount shown by the record as due at the date of the record is correct, but the court held that it is the proper registration of the abstract of judgment that creates the lien, and the record must be looked to in order to ascertain if a lien exists, and the amount thereof.

The Court of Civil Appeals correctly held that the evidence was insufficient to establish the judgment lien declared upon by plaintiff in error.

This case was tried upon the third amended original petition filed by W. -H. Askey-, on October -23,192S, in lieu of his second amended original petition recited to have been filed on October 2, 1926.

This trial petition embraces two counts. By the first count he complained of the surviving widow and children of D. L. Power, deceased, and of T. J. Power, administrator of said estate. One Addie Mitchum was also named a defendant; but no service of citation having been had bn her, she was dismissed. By the second count, plaintiff sought a recovery of damages against Alf Brown, R: M. Collins, E. P. Gibson, and Will New, sureties on the official bond of Jim Bellew, county clerk of Wise county, because of his alleged negligence in incorrectly recording said abstract of judgment. Said Bellew and one other surety, both alleged to have died, and another surety alleged to be actually and notoriously insolvent, were not made parties.

Under the first count, plaintiff sought recovery for the amount of the judgment against D. L. Power and foreclosure of said judgment lien on certain tracts of land therein described. He alleged presentation to, and rejection of, said claim by the administrator on or about November 1, 1925, and institution of this suit to establish said claim and enforce said lien against the lands of said estate. There was also a prayer for the establishment of said claim and its certification to the county court for classification and enforcement.

The prayer under the second count was for judgment against said sureties on the county clerk’s official bond in • the amount thereof, should said judgment lien not be enforced, because of any defect in the filing, recording, or indexing of said abstract of judgment.

The answer of the widow and administrator, parties defendant under the first count, consisted of a general demurrer, special exceptions, general denial, and cross-action for damages in the sum of $2,450, because of the alleged illegal levy on and sale of the personal property, lien on which was foreclosed in the original judgment, and the further sum of $1,000 as exemplary damages.

This answer further averred that a 200-acre tract (describing it) constituted the homestead of the widow and minor children, and all other lands were used and applied in settlement of personal claims for which -they stood as security ; -that several thousands in amount of unsecured claims have been approved against the estate, but there is no property thereof out of which they or the claim sued on can be paid.

The answer of the sureties, parties defendant under the second count, consisted of a general demurrer, special exceptions (amopg others) of misjoinder of parties and causes of action, general denial, and special answer that their liability is measured only by the statute governing bonds of county clerks, and this does not cover any negligent or improper conduct as alleged in plaintiff’s petition; also that the lands on which a judgment lien is claimed are incumbered to an amount greatly in excess of their'value, and there is no equity in the same out of which any part of the claim can be realized, even if plaintiff had secured a valid judgment lien. The answer contains other like averments unnecessary to set forth here.

At the trial, which was before a jury, after plaintiff had introduced in evidence the original judgment, the execution docket containing the sheriff’s return, showing sale of the personal property, lien on which was foreclosed, the original abstract of judgment, and its record, it was agreed that D. L. Power, at the time of his death, owned the tracts of land described in plaintiff’s third amended original petition. There was then introduced in evidence the original verified claim by plaintiff against the estate of D. L. Power, consisting of a copy of the original judgment, with a credit of $245.25, under date of June 20, 1924, received from the sale of the personal property described therein.

This claim was sworn to on November 19, 1925, and it was agreed that on its date it was presented to the administrator for allowance, and by him “refused, rejected and not allowed.”

The above was all the evidence adduced, except a designation by Power and wife, under date of January 12, 1922, of their homestead consisting of a certain defined and described tract of land containing 270½ acres.

Defendants offered no evidence and, when plaintiff closed, moved the court for an instructed verdict in their favor, which was given in the following language: “The evidence in this case being insufficient to warrant a judgment in favor of plaintiff, you are instructed to return a verdict herein in favor of defendants.”

The jury accordingly returned the following verdict: “We, the jury, find for the defendants.”

Before so instructing the jury, the trial court indicated that, in his opinion, the evidence failed to establish any judgment lien, and that he would give the peremptory instruction, whereupon plaintiff’s counsel requested the court to permit him to proceed to trial on the matters involved in his alternative plea, set out in the second count of his petition, against the sureties on the county clerk’s official bond. This request was refused.

The court did not err in refusing to reopen the case and admit further evidence in behalf of plaintiff, after he had closed his case.' Fisher v. Alexander (Tex. Civ. App.) 137 S. W. 715; Mantel v. Mitchell (Tex. Civ. App.) 293 S. W. 835 ; Mynatt v. Howard (Tex. Civ. App.) 273 S. W. 276; Pontiac Buggy Co. v. Dupree, 23 Tex. Civ. App. 298, 56 S. W. 703; Greer v. Bringhurst, 23 Tex. Civ. App. 582, 56 S. W. 947.

No order was made on the exceptions to pleadings, and the judgment simply denies any recovery to plaintiff and orders that all defendants “go hence without day and recover ail costs from plaintiff for which execution may issue.” This judgment was affirmed by the Court of Civil Appeals. 21 S.W.(2d) 326.

This brings us to the only remaining question before us, viz.: Did the trial court err in refusing to establish the former judgment as a claim against the estate?

On this point, the Court of Civil Appeals held that there is no evidence in the record showing that this suit was filed within ninety ■days after rejection of the claim by the administrator, as is required under article 3522, Rev. St. 1925 (article 3449, Rev. St. 1911), and therefore, although properly alleged in the petition that the claim was presented and rejected on or about November 1,1925, and that the suit was filed on November 19, 1925, and although the defendants by neither demurrer, plea in abatement, plea of limitations, or otherwise, raised the question, the .failure to make proof of such filing within ninety days is fatal to any recovery herein.

It is required by statute (article 2281, Rev. St. 1925) that transcript on appeal shall in all cases contain a statement of the accrued costs. The transcript herein contains such statement 'and shows the filing and docketing of this case, issuance of citations and copies, as well !as of copies of petition and certificates thereto and the taxing of costs therefor,-all on November 19, 1925.

Rule 13 for the district courts provides that an amended pleading shall point out with its date the instrument sought to be amended, and rule 14 that a substituted instrument shall no longer be regarded as part of the pleading in the record of the cause, unless it be necessary to look to the superseded pleading upon a question of limitation.

' Construing these rules in T. & N. O. R. R. Co. v. Speights, 94 Tex. 350, 60 S. W. 659, Judge Williams said: “One purpose .of the requirement in rule 13 was to preserve upon the face of the record proper evidence of the history of the cause, without resort to the abandoned pleadings. Of course, the rule did not intend that rights should be lost in the mere process of amending the pleadings, and therefore provision was made in rule 14 to secure litigants against such a result. The trial court takes notice of the true date of filing the .suit on tyial before it as such date appears from the original petition, and may see from an inspection of it whether of not such date is incorrectly stated in an amendment, and the appellate court, reviewing its action, may do the same thing; but to enable it to disregard a recital such as that in question, designed by the rules to furnish the proper date, the other papers showing its incorrectness should be sent up with the record. * * * in so far as the opinion in the case of Cotton v. Jones, 37 Tex. 34, intimates that it is neees- - sary to introduce in evidence file marks upon a petition to show the date of institution of the suit, it conflicts with the decision in Hutchins v. Flintge, 2 Tex. 475 [47 Am. Dec. 659], and is not regarded as correct.”

To the same effect is the rule announced in Stewart v. Robbins, 27 Tex. Civ. App. 188, 65 S. W. 899. By rule 14 pleadings that are substituted by amended pleadings should be looked to as part of the record when necessary in determining a question of limitation and it is not necessary that such pleadings should appear in the statement of facts. , Smith v. Farmers’ Loan & Trust Co., 21 Tex. Civ. App. 170, 51 S. W. 515.

The trial court takes judicial notice of the date suit was filed. Liberty Life Ins. Co. v. Moore (Tex. Civ. App.) 10 S.W.(2d) 178, 179; Kelly v. Gibbs, 84 Tex. 148, 19 S. W. 380, 563; Eggenberger v. Brandenberger, 74 Tex. 275, 11 S. W. 1099; Edgar v. McDonald (Tex. Civ. App.) 106 S. W. 1135; O’Connell v. Rugely, 48 Tex. Civ. App. 456, 107 S. W. 151; Yarbrough v. Etheredge (Tex. Civ. App.) 163 S. W. 99S, 999; 16 Cyc. 917.

A cause must be heard in the appellate court upon the same theory as that upon which it was tried. 3 Tex. Jur., §§ 111, 718; Snyder v. American Car & Foundry Co., 322 Mo. 147, 14 S.W.(2d) 603, 606; Wolfley v. Wooten (Mo. App.) 293 S. W. 73, 76. If the court below had the evidence before it, by the original petition itself, and that evidence is reflected in the record on appeal, we must take it into consideration.

We have concluded that it is shown by the bill of costs in the transcript that the suit was filed within the prescribed ninety days after rejection of the claim by the administrator, and the Court of Civil Appeals erred in holding that the trial court did not err in denying the establishment of the judgment as a claim against the estate.

It appears that with the motion for rehearing in the Court of Civil Appeals plaintiff in error filed in that court a purported copy of his original petition in the district court showing that it was filed on November 19, 1925. The court declined to consider such copy on the authority of Houston & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 369, although in that case the record was permitted to be corrected, and because of rule 22 for Courts of Civil Appeals, and distinguishes that ease from Patrick v. Pierce, 107 Tex. 620, 183 S. W. 441, because in the latter a jurisdictional question was involved, while here the question goes only to the merits. In the Pierce Case Chief Justice Phillips permitted correction of the record and resolved the conflict between rules 1 and 22, in favor of the appeal.

In Missouri, K. & T. R. Co. v. Juricek, 147 S. W. 327 (writ of error refused), the Austin Court of Civil Appeals, on rehearing, permitted to' be filed a certified copy of a special charge which had been omitted' from the transcript, and by reason thereof, granted a'rehearing and affirmed the judgment below. The same court held in Tompkins v. Pendleton, 160 S. W. 290, 291, that rules of court must not be so arbitrarily construed as to defeat the ends of justice in any ease.

However, the holding of the Court of Civil Appeals on this point is unimportant, in view of our conclusion that the transcript itself, through the statement of costs required by statute to be placed therein, furnishes evi-’ dence -that this suit was filed within the time prescribed by statute.

The ease has not been fully developed, and we therefore' recommend that the judgments of the Court of Civil Appeals and of the district court be reversed and the cause be remanded for a new trial.

LEDDY, J., did not participate in the decision of this cause.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


text:
    SECURITY UNION INS. CO. v. McLEOD.
    No. 1234-5610.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.

      Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.
    Charles Gibbs and Glenn R. Lewis, both of San Angelo, for defendant in error.
   RYAN, J.

This is a suit arising under the Workmen’s Compensation Act (Vernon’s Ann. Civ. ' St. arts. 8306-8309) and involves a claim for compensation by A. M. McLeod for injuries alleged to have been received by him on or about April 24, 1928, while, as he alleges, he was working for L. E. Whitham & Company,

The trial court held that under the undisputed testimony, McLeod was not an employee of Whitham & Company but was an employee of' J. L. Menefee, a hauling contractor, and instructed a verdict for plaintiff in error, Security Union Insurance Company, and against McLeod, upon which judgment was accordingly entered.

The Court of Civil Appeals reversed that judgment and remanded the cause for a new trial, holding that there was sufficient evidence to raise an issue for the jury as to whether McLeod was an employee of Whit-ham & Company or of J. L. Menefee. 22 S.W. (2d) 952.

The evidence shows that J. L. Menefee was a hauling contractor in the city of San Angelo and owned a fleet of six trucks; Mene-fee drove one of the trucks and employed the drivers for the other trucks. He had a contract with Whitham & Company, paving contractors, to haul gravel for them from a pit located on property of Theo Montgomery, some four or five miles from San Angelo, to the-point in the city where the gravel was needed. McLeod was employed and paid by Menefee and boarded at Menefee’s house. The truck he drove was owned by Menefee, who paid all expenses incident to its upkeep and maintenance. Menefee employed all the drivers of the trucks owned by him and used in the performance of his contract for hauling for Whitham & Company. Said trucks were kept at Menefee’s house and all of the truck drivers boarded with him.

McLeod testified that his contract of employment was with Mr. Menefee, and would be paid $60 a month and board, estimated at $40 or $100 a month. If he lost four or five days a month Menefee agreed to pay him at the rate of $3.30 a day for the days he hauled and charge him $1.33 a day for board, and pay $2 a day “for the days we hauled." Menefee was hauling gravel for Whitham & Company, and not for any one else. He testified further that Menefee once told him that so long as he pleased Whitham & Company he would have a job, and if he did not please Whitham & Company he (Menefee) would turn him off.

The Court of Civil Appeals found that Whitham & Company could not discharge any one from the general employ of Menefee, but that the evidence is sufficient to support a finding that they reserved and exercised the right to exclude from the work any truck driver who failed to satisfy them, and that this was tantamount to discharge from the particular employment whether there was a discharge generally from Mene'fee’s employ, or not.

The testimony further shows that on April 24, 1924, when the injuries were received, McLeod was driving a truck owned by Menefee, back from the gravel pit to the home of Mene-fee to store it there until the next day, having been told, when he went to the gravel pit, that no hauling would be done that day; it was on his return home to Menefee’s residence, with the truck, that his injuries occurred when he ran off the road. The testimony further shows that bn that day, neither McLeod nor any other of Menefee’s trucks did .any hauling whatever for Whitham & Company.

The process of loading the gravel into the trucks was as follows: Whitham & Company owned and operated a crane which lifted the gravel into a chute; the trucks were backed under and filled from the chute. This process was under the control of an employee of Whitham & Company. As a truck was loaded and after a signal “to pull out,” the truck driver left the pit with his load and brought it to the place of delivery, where the truck was unloaded. In unloading, the truck driver, on a signal from an employee of Whitham & Company, would back in and “dump” the load.

Whitham & Company exercised no other control over the trucks or their drivers than as detailed above, in the loading at the pit and the unloading at the place of delivery.

On delivery of the gravel, Whitham & Company gave the driver a slip or ticket which showed the number of yards hauled on that load, which was turned over to Menefee, who twice a month presented such slips or tickets to Whitham & Company and was paid for the hauling, at the rate of 75 cents per yard, based on such slips or tickets.

Under Whitham & Company’s agreement with Menefee, they had no right to employ or discharge the men driving his trucks, nor to repair the trucks nor control his men; they never carried these men on their pay rolls or paid them, neither were the men ever reported to the insurance company as employees of Whitham & Company, nor was any premium paid on them.

, Plaintiff in error issued a policy of compensation insurance to Whitham & Company, but not to Menefee.

Opinion.

We have reached the conclusion that McLeod was not an employee of Whitham & Company, within the meaning of the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. arts. 8306-8309), when he was injured.

To constitute one an employee in the meaning of the compensation laws, there must exist between the parties the relation of master and servant in the broad sense that the one has the right of ultimate control and direction over the other.

The relation of master and servant exists, where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished, but as well the means and details of its accomplishment; not only what shall be done, but how it shall be done. Shannon v. Western Indemnity Co. (Tex. Com. App.) 267 S. W. 522, 523; Wallace v. S. C. O. Co., 91 Tex. 18, 40. S. W. 399; Southern Surety Co. v. Shoemake (Tex. Com. App.) 24 S.W.(2d) 7.

The mere right of a person who has let out a contract, to supervise the work in such a way as to see that it is performed according to contract, does not make the employees of the contractor his employees. Simonton v. Perry (Tex. Civ. App.) 62 S. W. 1090; Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S. W. 495, writ of error refused; American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949, writ of error refused.

While it may be true that Whitham & Company loaded the trucks and designated where they should be unloaded when they reached their destination, they had and exercised no other supervision and had nothing to do with the drivers’ employment or the means by which the hauling was done; they were concerned only in seeing that the trucks were loaded, and in the gravel being delivered to them; then and as delivered, they paid Mene-fee for the hauling on the basis of 75 cents per square yard.

At the time of the injury, McLeod was not riding or driving in Whitham & Company’s truck and was not under their control, but was driving an unloaded .truck owned and controlled by Menefee, his employer, on his return to Menefee’s premises.

We recommend that the judgment of the Court of Civil Appeals be reversed, and that of the district court affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court affirmed, as recommended by the Commission of Appeals. .


author: SHARP, J. CURETON, O. J.

text:
    EMPIRE GAS & FUEL CO. v. NOBLE et al.
    No. 1426-5627.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.

      O. O. Julien, of Bartlesville, Okl., and A. D. Dyess and Leon Jaworski, both of Houston, for plaintiff in error.
    Maco Stewart, of Galveston, and A. J. De Lange, of Houston, for defendants in error.
   SHARP, J.

For a partial statement of the nature and result of this caise we adopt the clear and admirable statement made by Judge Walker in the opinion of the Court of Civil Appeals. The pleadings are voluminous, which makes the statement long, hut it cannot be abbreviated. It is as follows:

“In the case of H. Taylor et al. v. Higgins Oil & Fuel Co. et al., on the docket of the district court of Liberty county, on the 18th day of August, 1924, appellants Lynd and Noble, defendants in that suit, recovered judgment against their codefendant, the ap-pellee here, Empire Gas & Fuel Company, for the sum of $15,679.12, together with certain other relief set out in the judgment. That suit as instituted was an action in trespass to try .title by H. Taylor and others against Houston Production Company and others, to recover a small tract of 1.27 acres of land off the east end of the 10-acre tract held under lease by the Houston Production Company. Immediately west of that tract was a tract of 5 acres owned by the appellants, who had leased it for oil development to appellee. Houston Production Company made the claimants of this 5 acres parties defendant, and in the event they lost to plaintiffs claimed the same amount off the east end of the 5-acre tract. Plaintiffs had brought in a producing oil well on the tract they were suing for, and the Empire Gas & Fuel Company, as lessees under appellants, had brought in a producing oil well on the small tract put in controversy by the action of the Houston Production Company against them. On similar pleas the owners of the tracts lying west of the 10-acre tract and the 5-acre tract were made parties defendant in that case. In the final judgment rendered therein on the 18th day of August, 1924, the plaintiffs lost to the Houston Production Company, and judgment was entered against them on the issue of title and also on the issue of improvements made in good faith.
“The Houston Production Company having recovered against the plaintiffs, it followed that they had no cause of action against Lynd and Noble and Empire Gas & Fuel Company on its cross-action, and that none of the other defendants had causes of action against their codefendants on their cross-actions. The judgment in favor of Lynd and Noble against Empire Gas & Fuel Company was in response to their plea asking for an accounting for the oil produced by it from -the well on their lease. H. Taylor et al. appealed from the judgment against them to this court, where the judgment was in, all things affirmed, except on the issue of improvements in good faith between them and Houston Production Company. On that issue the case was remanded for a new trial. The judgment of the trial court in that case was very lengthy, and by express recitations adjusted the claims of all the parties to all the land that had been brought in by cross-action. The plaintiffs, in appealing, superseded the judgment of the trial court, and in affirming the judgment as between the plaintiffs and the Houston Production Company this court affirmed the judgment as rendered between all the other parties to the suit. Writ of error was denied by the Supreme Court against our judgment. Our opinion is reported in 2 S.W. (2d) 288, Taylor v. Higgins, to which we refer for a more particular statement of the claims of the various parties and ■the relative location of- the several tracts of land put in controversy in that suit.
“After writ of error was denied, Lynd and Noble called upon Empire Gas & Fuel Company to pay their judgment against it. After continued negotiations, payment was refused. Lynd and Noble' then sued out execution on their judgment, and this suit was brought by appellee, Empire Gas & Fuel Company, against appellants Lynd and Noble and their attorney, and the sheriff to whom execution had been delivered, praying that the judgment against it in favor of appellants be annulled and canceled, and that appellants be forever enjoined from enforcing it. By its preliminary allegations appellee pleaded in detail all the circumstances leading up to the judgment against it,'which circumstances are reflected in our statement, as made supra.”

The Court of Civil Appeals reversed the judgment of the trial court rendered in cause No. 6810 canceling and annulling the judgment rendered in favor of Lynd and Noble against the Empire Gas & Fuel Company, and held that the original judgment rendered' in cause No. 5837 on the 18th day of August, 1924, is a valid judgment, and that same is not dormant. 20 S.W.(2d) 849. A writ of error was granted by the Supreme Court. The cross-bill filed by Lynd and Noble against the Empire Gas & Fuel Company is set out in the. opinion of the Court of Civil Appeals, and we refer to same.

The Empire Gas & Fuel Company contend that the judgment rendered in cause No. 5837, supra, is void for the following reasons, to wit:

(1) No citation was ever issued or served against the Empire Gas & Fuel Company on the purported cross-action filed against it by Lynd and Noble, and no waiver of service was ever made by the company.

(2) That the district court of Liberty county fe a court of record and any judgment rendered in said court must be supported by pleadings.

(3) That the judgment on said purported cross-action against the Empire Gas & Fuel Company was entered non obstante veredicto and the district courts of this state are without power .to enter such judgment.

(4) That the purported judgment was wholly unsupported by the evidence.

(5)The judgment rendered in this cause on said purported cross-action was rendered on the 18th day of August,. 1924, and was not appealed from by either the Empire Gas & Fuel Company or the said Lynd and Noble, and, no execution having been issued thereon within one year as provided for by law, said judgment was dormant.

The main question for decision in this ease is: Was the judgment rendered in the district court of Liberty county in cause No. 5837 on August 18,1924, in the case of H. Taylor et al. v. Higgins Oil & Fuel Co. et al., a valid and binding judgment as between Lynd and Noble and the Empire Gas & Fuel Company?

This record discloses that in cause No. 5837 plaintiffs filed their original petition therein on January 19, 1923; that the original answer of the Empire Gas & Fuel Company and Lynd and Noble was filed July 14, 1923; on March 3, 1924, attorneys for Lynd and Noble filed a cross-bill against their codefendant, the Empire Gas & Fuel Company; no citation on the cross-bill filed by Lynd and Noble was issued or served on the Empire Gas & Fuel Company nor any waiver thereof made by that company; that the ease was continued until August 18, 1924, at which time it was tried and judgment rendered in said cause. It is a long judgment, and only the pertinent parts will be set out herein. It recites that “on this the 18th day of August A. D. 1924, this cause was called for trial, and thereupon appeared each and all of the plaintiffs and announced ready for trial, as did also each and all of the defendants, except the following defendants, viz.” (The Empire Gas & Fuel Co. is not one of them.)

It further recites: “ * * * And the defendants, Empire Gas & Fuel Company, E. L. Noble and J. H. Lynd, ought to have and recover of and from the defendants, S. E. Bev-ers, M. B. Finkelstein and A. Boyd, the land sued for by them herein.”

And again it recites: “ * * * And also by the cross-action of the defendant, Empire Gas & Fuel Company, E. L. Noble and J. H. Lynd, and said defendants, Houston Production Company, Empire Gas & Fuel Company, E. L. Noble and J. H. Lynd, announced to the court that they dismissed their cross-action against said defendant, Earl Wharton, and accordingly the court ordered that this cause as to said defendant, Earl Wharton, be and the same is hereby dismissed.”

Again it recites: “ * * * And further it is ordered, adjudged and decreed by the court that said defendants, E. L. Noble and J. II. Lynd, do have and recover of and from the said defendant, Empire Gas & Fuel Company, the sum of Fifteen Thousand Six Hundred and Seventy-nine & 1¾00 ($15,679.-12) Dollars, with interest thereon from this date at the rate of 6% per annum, and further that this judgment and recovery in favor of said defendants, E. E. Noble and J. H. ■Lynd, is without prejudice to their right to hereafter recover of and from said defendant,. Empire Gas & Fuel Company, all royalties not ■included in the sum of money above mentioned and which may accrue after August 19th, 1924, under and in accordance with the provisions, terms and conditions of that certain oil and mineral lease above mentioned from said E. L. Noble and J. H. Lynd to said Empire Gas & Fuel Company, of date June 1st, 1922, recorded in Atol. 115, pages 87 et seq., Deed Records of Liberty County, Texas.”

It is undisputed that no citation was issued or served upon the Empii’e Gas & Fuel Company on the cross-bill filed by Lynd and Noble asking for an accounting between them. However, it is contended that on the face of the judgment entered the Empire Gas & Fuel Company made its appearance in the case at a time and under such circumstances as to require it to take notice of their cross-bill. It is shown by the record that the cross-bill by Lynd and Noble against the Empire Gas & Fuel Company was filed on March 3, 1924; that the case was continued and a trial had on the 18th day of August, 1924. The judgment recites that the Empire Gas & Fuel Company appeared and announced ready for trial; that it presented certain demurrers to the pleadings which were acted upon by the court and to which action it excepted; that during the trial it appeared on the issues made against it and Lynd and Noble by the Houston Production Company; that these issues were heard by the court and decreed in its favor, and furthermore the trial court heard the evidence on the cross-bill filed by Lynd and Noble and entered the judgment complained cf.

If a judgment is void, the party against whom it is rendered is not compelled to show a defense to the action in order to enjoin' it. Galveston, H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S. W. 918. However, if a judgment shows upon its face to be valid, every presumption will be indulged in support of it. Look v. Henderson, 4 Tex. 303; Pierson v. Burney, 15 Tex. 272; Townsend v. Ratcliff, 50 Tex. 148.

It is a general rule that, if one of several defendants pleaded over against a codefend-ant, asserting against him rights in the subject of litigation not mentioned in the petition, notice must be served upon the defendant thus pleaded against, unless he has answered in the main cause. Roller v. Reid, 87 Tex. 69, 26 S. W. 1060; Crain v. Wright, 60 Tex. 515 ; Simon v. Day, 84 Tex. 520, 19 S. W. 691; Gulf, C. & S. F. Railway Co. v. Hathaway, 75 Tex. 557, 12 S. W. 999.

It is equally well settled that, if a person enters his appearance in the main case, he is before the court for all purposes, and the person filing his cross-bill is entitled to his judgment thereon without the necessity of citation. Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136; Gregg v. Texas Bank & Trust Co. (Tex. Civ. App.) 235 S. W. 6891 (writ denied) ; Roller v. Reid, supra; Cruz v. Texas Glass & Paint Co. (Tex. Civ. App.) 199 S. W. 819, 821; Bryan v. Lund, 25 Tex. 98; Hickman v. Swain (Tex. Civ. App.) 210 S. W. 548, 550.

In 34 C. J. p. 293, § 509, it is said: “A judgment will not be set aside on account of defects or insufficiency in the pleadings, especially where the alleged fault was amendable, or has been waived by joining issue and going to trial, or cured by verdict.” See Freeman on Judgments (5th Ed.) §§ 222, 366.

Let us apply the foregoing rules to the facts of this case. The Empire Gas & Fuel Company, as shown by the judgment of the trial court, participated in the proceedings during the trial of the case; that the record further shows that a copy of the judgment was furnished the attorney of record for the Empire Gas & Fuel Company before its entry by the court and no objection made thereto; that the attorney of record for the Empire Gas & Fuel Company approved the statement of facts containing the testimony introduced in support of the cross-bill, upon which an appeal was made. Attached to the pleadings is a copy of a letter written by its attorney to the Empire Gas & Fuel Company, in which a copy of the judgment entered is inclosed, stating that the judgment has been entered for the amount stated therein and that it was proper for same to be paid.

A casual inspection of the record would have disclosed the judgment complained of. These facts, in our opinion, as a matter of law, visited notice to the Empire Gas & Fuel Company of the contents of this judgment. Gulf Production Co. v. Palmer (Tex. Civ. App.) 230 S. W. 1017 (writ denied).

Therefore, based upon this state of the record, the rule is well established in this state that, in order to permit the Empire Gas & Fuel Company to set aside the judgment rendered herein after the term of the court in which it is rendered has expired, the burden rests upon the Empire Gas & Fuel Company to allege and prove the following prerequisites:

(a) That the Empire Gas & Fuel Company was prevented from presenting its defense by fraud, mistake, or accident and without any want of proper diligence on its part.

(b) That it has a meritorious defense.

The judgment entered in cause No. 5837, and complained of, is regular upon its face. The term of the court at which the foregoing judgment was rendered had expired, and the suit to annul and cancel same was filed something like four years later. Assuming that the pleadings filed by the Empire Gas & Fuel Company compiled witli the foregoing prerequisites, yet there was no proof offered except the pleadings filed. The fact that the Empire Gas & Fuel Company introduced its pleadings did not meet the requirement of the rule stated. See Hopson v. Caswell, 13 Tex. Civ. App. 432, 36 S. W. 312; Robertson v. Ephraim, 18 Tex. 124; Graves v. Bank, 77 Tex. 555, 14 S. W. 163; Humphrey et al. v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963, 964; 1 Enc. Plead. *& Prae. 32. The judgment entered by the district court of Liberty county on the 11th day of February, 1929, annulling and canceling the judgment entered in cause No. 5837 and forever enjoining Lynd and Noble from executing the judgment, recites as follows; “No evidence having been introduced or heard by the -court other than to consider the pleadings in this cause, and -the said pleadings, filed papers,^ and judgments in said Cause No. 5837.

In the case of Humphrey et al. v. Harrell et al., supra, it is said:

“It has long been the settled rule in this state that the trial court is without power to grant a new trial after the expiration of the term at which the judgment assailed is rendered. The law has provided rules for new trials at the term at which a judgment is rendered, and, if a party has not availed himself of his legal remedy in a manner prescribed by law, it is lost. However, if it can be shown under certain circumstances where there has been fraud, accident, or mistake, and a person had been deprived of his rights through no fault of his own, courts of equity in the due exercise of their discretionary powers may grant relief by retrying the case upon its merits, and the former judgment may be set aside and such relief will be granted as is appropiúate and warranted by pleading and proof on the entire case. Mussina v. Moore, 13 Tex. 8; Seguin v. Maverick, 24 Tex. 526, 76 Am. Dec. 117; Overton v. Blum, 56 Tex. 417; McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870; Robbie v. Upson (Tex. Civ. App.) 153 S. W. 406; Kruegel v. Cobb, 58 Tex. Civ. App. 449, 124 S. W. 723 (writ refused).
“The only relief to an injured party, other than by appeal, is by direct suit setting up equitable grounds for the relief sought. When such a petition for relief at a subsequent term is brought before the proper court, it is not contemplated that the cause shall be divided and tried by piecemeal; one in which a judgment is rendered setting aside the former judgment and the other in a trial on the merits, but every issue arising on the merits mu-st be disposed of, and the relief prayed for is either denied or granted in the one proceeding. Roller v. Wooldridge, 46 Tex. 485; Lamb-McAshan Co. v. Ellis (Tex. Com. App.) 270 g. W. 547; Owens v. Foley, 42 Tex. Civ. App. 49, 93 S. W. 1003, 1005 (writ of error denied); Cooper v. Cooper (Tex. Civ. App.) 260 S. W. 679; Reed v. Runion (Tex. Civ. App.) 269 S. W. 449; Bell v. Cobb (Tex. Oiv. App.) 296 S. W. 976; Barton v. Montex Corp. (Tex. Civ. App.) 295 S. W. 950; Camden Fire Ins. Co. v. Hill (Tex. Com. App.) 276 S. W. 887; Brown v. Olippinger, 113 Tex. 364, 256 S. W. 254.”

See Wear v. McCallum (Tex. Sup.) 33 S.W. (2d) 723.

Unless the judgment entered in cause No. 5837 is dormant as shown by the record, the contentions made by the Empire Gas & Fuel Company should be overruled. Upon this phase of the case we quote from the statement made by the Court of Civil Appeals in its opinion as follows:

“The judgment was not dormant at the time appellants sued out their execution. The judgment was entered on the 29th day of August, 1924, and affirmed by this court and rehearing denied on January 11, 1928, and afterwards writ of error dismissed by the Supreme Court. Within less than a year from that date -appellants sued out their execution. We agree with appellants that Shamburger v. Glenn (Tex. Civ. App.) 255 S. W. 815, 816, announces a correct rule where it is said: ‘Where there are separate causes of action, the judgment upon each cause of action is a separate judgment, and where a party appeals from the judgment rendered as against him, and the. other parties fail to appeal, the causes of action being separate and distinct, the judgment as to the parties not appealing becomes final. Burleson v. Henderson, 4 Tex. 60; Bradford v. Taylor, 64 Tex. 171; Boone v. Hulsey, 71 Tex. 176, 9 S. W. 531; Lauchheimer v. Coop, 99 Tex. 386, 89 S. W. 1061, 90 S. W. 1098.’
“But that rule has application, as between the defendants, only when the cause of action asserted by the one against the other is separate from the plaintiff’s cause of action, and where the affirmance or reversal of the plaintiff’s cause of action would not affect the judgment as between the defendants. That is not the case here. On the face of th-ei record it affirmatively appears that the Houston Production Company had no cause of action again-st appellee and appellants on its cross-action against them, unless the plaintiffs recovered against it, and that situation applies to all -the cross-actions filed by the defendants against each other. It also affirmatively appears on the face of the record that, had plaintiffs recovered against the Houston Production Company, it would have been entitled, as a matter of law, to judgment against ap-pellee and appellants, and that the oil produced from the land claimed by appellants would have belonged to the Houston Production Company. Therefore the judgment in favor of the Houston Production Company was so related to the judgment against it in favor of appellants and appellee that, had this court reversed the judgment in favor of the plaintiffs as a matter of law, without any cross-assignments by the Houston Production Company against appellants and appellee, and without any cross-assignment by appel-lee over against appellants, the judgments in their favor would have been reversed. These judgments were all so related that the reversal of one, as a matter of law, would have required us to reverse all others, in. order that the trial court, in finally disposing of the issues between the parties, might do justice among them. The supersedeas bond filed by the plaintiffs, to which appellee and appellants and all other defendants were made parties, operated to supersede appellants’ judgment against appellee.”

Tested by every sound rule, the judgment entered in cause No. 5837 undoubtedly shows upon its face to be valid, and therefore every presumption will be indulged in support thereof.

We are in accord with the holding of the Court of Civil Appeals that the judgment entered on August 18, 1924, in cause No. 5837 is not dormant, and that it is a valid, outstanding, and enforceable judgment in favor of Lynd and Noble against the Empire Gas & Fuel Company, and that the trial court erred in annulling and canceling same upon the ground that it was dormant.

Therefore we recommend that the judgment of the Court of Civil Appeals reversing the judgment of the trial court be in all respects affirmed.

CURETON, O. J.

Judgment of the Court of Civil Appeals reversing that of the district court is affirmed, as recommended by the Commission of Appeals.


author: CRITZ, J. CURETON, C. J.

text:
    WHITE et al. v. HANSEN et ux.
    No. 1414-5612.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    . Chamberlain, Green & Wade and W. A. Wade, all of Dallas, for plaintiffs in error.
    John W. Pope, of Dallas, for defendants in error.
   CRITZ, J.

This is an injunction suit filed in the district court of Dallas county, Tex., by plaintiffs in error, John Neill White and twenty other property owners in University Heights, an addition to the city of Dallas, Tex., for the purpose of enjoining the defendants in error, Harry C. Hansen and wife, from erecting and living in a small frame structure on a vacant lot owned by the Hansens in such addition.

It is alleged and proved that the construction of the house in question was begun in July, 1929, and this suit was immediately filed.

It is further shown that the addition in question was opened up and developed by University Park Development Company, one of the plaintiffs, under a general scheme and plan of development of the addition so as to make it a desirable, restrictive, and exclusive residence section. In order to carry out such general scheme and plan every deed to any lot sold in the addition contained certain restrictive covenants running with the land. Those applicable to this suit read as follows:

“1. Said premises shall be used for private residence purposes only and by white persons only, not excluding bona fide servants of any race. Said property shall not be used for business purposes of any kind whatsoever, nor for any commercial, manufacturing, or apartment house purposes.
“2. Any residence erected shall be of stone, brick, brick veneer, or stucco on hollow tile, and shall cost not less than $4,000.00.
“3. The front line of the body of any residence which may be erected on the property shall be 35 feet from the front property line and shall face the street on which the lot faces, and said house shall not be nearer than 6 feet; to either side property line of grantees .property, but this provision shall not apply to porches or portecocheres. In case of a corner lot no garage or other outhouse shall be placed nearer than 10 feet to the property line of the side street.
“4. It is further covenanted and agreed and made a part of the covenant running with said land, that upon a breach of any of the foregoing conditions and covenants, within twenty-five years from January 1, 1926, the title to said premises shall ipso facto and immediately revert to and vest in the grantor herein, or to its successors or assigns, and it, or ⅝ successors or assigns, shall be entitled to immediate possession thereof, but such reversion shall not affect any mortgage or other lien which may in good faith be existing upon said property or any improvements thereon.”

The lot of the Hansens was purchased in September, 1925, soon after the addition was opened, and the lots placed on the market, and the deed to it contains the above-quoted restrictive covenants. The plaintiffs in this suit are the development company, who still owns a few unsold lots, and certain other parties who purchased lots from the development company in the addition. The lot of the Hansens is on the comer of Stanford street and Hillerest avenue, and fronts on Stanford street.

In July, 1929, the Hansens began the construction on their lot of what is described as a garage and servants’ house combined. The structure is to be a four room frame building, to cost about $1,000,, and to consist of a living room, bedroom, dining room and kitchen, and bath. There is a one car garage attached in such a manner that one wall of the house in question constitutes one wall of the garage. The structure is on the back of the lot.

When this suit was filed a temporary injunction was granted, but when the case was finally tried on its merits on September 29, 1929, before the court without the intervention of a jury, the permanent injunction was refused. This judgment was affirmed by the Court of Civil Appeals. 21 S.W.(2d) 1091. The case is in the Supreme Court on writ of error granted on application of J. Neill White et al.

It seems that no issue is raised as to the validity of the restrictive covenants in question.

The Court of Civil Appeals holds that the trial court committed no error in refusing the injunction here sought, .because under such covenants the- Hansons had a right to erect what they designated as a' servants’ house and garage, to be used by them as a residence temporarily, if they, in good faith, intended within a reasonable time to erect the main residence in compliance with the restrictive covenants in the deed. The Court of Civil Appeals further finds as a matter of fact that the evidence is sufficient to establish such intent. We do not agree with this holding.

The Hansens expressly pleaded that: “Tour defendants further allege the fact to be that when said garage and servants’ house is completed, they intend to move into same, and to temporarily occupy said garage and servants house until, if and when they can arrange their plans for the construction of their residence upon the front of said real estate, in compliance with and in conformity with the general scheme and plan and restrictions as are found in defendant’s deed, and then the defendants intend to remove from said garage and servants’ house, into their said residence, to be so constructed, and then to have said servants house occupied by their servants, and such help as your defendants may need about the premises, and to use said garage part of said house for the storage of their, said automobile.”

H. C. Hansen was sworn as a witness in his own behalf, and, among other things, testified: |

“I knew that my deed provided, at the time we started this house, that the resi-. dence had to be built within 35 ft. of the front of the lot. We began the constructon of ¡ this house near the' back, as close as , possible, within two ft. of the property line to, the alley, and about 16 ft., I think, from Hill-! crest St. The servant’s house and garage faces Hillerest We intended to move into the place when we finished for the present. We didn’t intend to live in it very long, not longer than absolutely necessary, probably three months or six months, just as soon as we could make arrangements to build a house.
“I am 28 years old and work for a showcase company. It is our intention to build a home on the front of the lot. We have been married nearly a year and we are building this servant’s house merely to occupy it until we can build a home in front- We intend to finance it in such a way that we can build it. I couldn’t give the court the exact date as to when we will build'because I don’t know when it will be, but it is our plan to build in front as soon as we can make arrangements. If we are permitted to finish this house, I propose to proceed at once to try and finance and build a house.
“We haven’t any definite plans except that is what we plan to do. I don’t know whether we can be able to build a house in six months or a year or a year and a half or two years. I can’t tell what might come up. I might be able to build it within three months or six months. I have no other property than this. This lot is not quite paid for. We have been paying on it since we have been married, by the month.
“I am working on a salary of $150.00 a month, and that is all the income I have at the present time; that is not all I expect to have in the future, but I don’t know and couldn’t say when it will be more.
“I have not mapped out any plans for the house to build; I have not drawn up any plans and specifications; the lot lacks a little of being paid out. I am borrowing the money to build- this garage and servant’s house. I do not think it would be absolutely necessary to get the lot clear before I could borrow money to -build a house. I could not say definitely at this time when I will start building the house. I do have á plan in my mind that I am going to build this home, and I might .be able to get to it within six months.”

Mrs. Hansen was also sworn as a witness and' testified among other things as follows:

“If we are -petmitted to complete this servant’s house and garage we intend to live in it temporarily. We intend to build us a home or residence on the other parf of the lot. We never at any time had the idea of going into the servant’s house and garage and living there permanently. It has always been mine and my husband’s idea to live there only until we can .construct our home. It was the idea of myself and my husband at the time we began the construction of this garage and servant’s house that we would not begin building a home in front of the lot until we could make arrangements to build and finance a nice house. We have no idea of living in the garage five years or ten years, just temporarily; I don’t know how long that would be, until we could finance ourselves, and get a loan to put the building on.”
“ ⅞ * ⅜ -^re haven’t any definite plans now to build a house up on- the front of the lot but we have had if in our minds what we are going to do; we have made no definite arrangements about it. I couldn’t tell now just how long we will live in this temporary house.”

It is contended by White et al. that the holding of the Court of Civil Appeals at Dallas in the instant case [21 S.W.(2d) 1091] is in conflict with the holding of the .Court of Civil Appeals at Galveston in the case of Plaster v. Stutzman, 8 S.W.(2d) 750, 751. An examination of the restrictive covenant construed in the Plaster Case shows that it contained the express provision that: “And no building constructed for purposes other than a residence shall be used or occupied as a residence.”

The Galveston court held, in a suit to enjoin the lot owner from using a garage as a residence in violation of a building restriction contained in the deed very similar to the one here involved, except such deed had the above express provision not’ contained in the instant deed, that a contention by the lot owner that he occupied the garage temporarily pending construction of the main residence presented no defense. On account of the fact that the deed in the Plaster Case contained the above express provision, not contained in the instant deed, we are unable to hold that the two cases present a conflict.

We do not think that under the wording of the restrictive covenants of the deed here involved it is absolutely essential that the main residence be constructed or begun before the outhouses, such as servants’ quarters and garage are constructed or begun; but we do hold that this deed, at the very least, contemplates that, where outhouses are first constructed, the main residence shall thereafter be at once erected without delay. It is not contemplated that the lot owner may erect a house such as this, which, in its predominant features, is a residence as long as it stands alone on the lot, and live therein for an indefinite period, just because he has formed an intent in his own mind to, at some undetermined time in the future, erect the residence required by the deed. Such a construction would practically nullify the restrictive covenants in the deed.

In this case the testimony of both Mr. and Mrs. Hansen, construed in its most favorable light in their behalf, shows that they merely hope or intend, at some very indefinite time in the future, to comply with the deed with reference to the residence. Their testimony taken as a whole demonstrates, as a matter of law, that they intend, when they are able, and can secure the finances to do so, to build the main residence; and that they do not intend to do so at once after the house here involved is completed. In other words, the testimony of the Hansens, as a matter of law, establishes the fact that they are building the house here involved in violation of the restrictive covenants contained in their deed.

We recommend that the judgments of the Court of Civil Appeals, and of the district court, be both reversed and the cause remanded to the district court for a new trial.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded to the district court, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.