De Berry v. Chambers

WILLSON, C. J. (after stating the facts as above). [1] It is not contended, and we think could not be reasonably, that the citation and service thereof on appellant did not confer upon the court jurisdiction of his person, so far as the cause of action stated in the original petition was concerned. The contention is that the judgment against appellant was unauthorized, because he was not notified of the filing in vacation of the amended petition. It is not necessary to determine whether appellant would have been entitled on that ground to relief he sought, or not, had it appeared that the amended petition in fact set up a cause of action against him differing from the one set up in the original petition; for it is plain from the record that the amended petition did not do that. The cause of action against appellant stated in the amended petition was identically the same as that stated in the original petition. The only difference between the two petitions was that it was alleged in the amended one, and was not in the original', th^it the land against which the foreclosure was sought had been conveyed by appellant and Flippen to T. B. Weathersby. It is clear,- we think, that this allegation did not concern appellant, and therefore that he was not entitled to complain because he was not notified of the filing of the petition containing it. Article 1824, Vernon’s Statutes; Tel. Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 312; Railway Co. v. Porter, 156 S. W. 267; Rabb v. Rogers, 67 Tex. 335, 3 S. W. 303. [2] It appearing, as it did, that he had jurisdiction of the suit, and of the parties thereto, prosecuted by appellee against appellant and others, the court had power to render the judgment he did render therein against appellant. If it was erroneous, and we think it was not for any reason appearing in the record before us, appellant should have applied for a new trial as "provided by the statute, and, if refused, one should have had the error corrected by an appeal or writ of error prosecuted as authorized by law. No other way to obtain relief against mere error in that judgment was open to him in the absence of a showing that it was rendered as a result of fraud, accident, or mistake and without fault or negligence on his part. Harn v. Phelps, 65 Tex. 592. He neither alleged nor proved that the judgment was the' result of either fraud or accident or mistake; and not only did not show that he was without fault or negligence in failing to defend the suit, but, on the contrary, as a witness in his own behalf testified that he “paid no attention to the suit whatever” because he “thought T. B. Weathersby was going to pay and settle it.” There is no error in the judgment from which this appeal is prosecuted. Therefore it is affirmed. Footnotes [1] <®=»3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes