Union Pac. Ry. Co. v. Miller

BOYCE, J. The appellees, William Miller, John Clymer, and W. T. Link, as plaintiffs in a suit filed by them against the appellant, Union Pacific Railway Company, a foreign corporation, recovered in the county court of Donley county, Tex., on the 5th day of February, 1913, a judgment by default against said railway company. The citation in that case appeared to be regular, and the return showed regular service on the railway company by service on T. J. Anderson, local agent. The judgment recited that said defendant had been “duly cited to appear according to law,” etc. This suit was brought by the appellant railway company in the county court of Donley county to enjoin execution of the above-described judgment, appellant alleging that no citation was served upon it in said cause; that it had no notice of the filing of said suit, and that the said T. J. Anderson, upon whom the citation in the case was served, was not its agent; that it had a meritorious defense to said original suit; and such other facts as were necessary to entitle it to relief against the execution of said judgment. Upon the trial of the case no testimony was offered as to any defense the appellant might have had to the original suit, and the trial court, for this reason as well as others not necessary to here state; entered judgment against the appellant dissolving the temporary injunction theretofore granted, and denying relief against the execution of said judgment, and this appeal is from this judgment of the court. Some confusion at one time existed in the decisions of this state as to whether or not in this character of case it would be necessary for one seeking to enjoin a judgment alleged to be void, to allege and prove that he had a meritorious defense to the original cause of action on which the judgment was rendered. Out of this confusion a rule of decision, based on a distinction between judgments where the invalidity appears from the face of the record and those where the invalidity is only made to appear by extrinsic evidence, has been evolved, which, it is claimed, will reconcile the apparent conflict. Whether this distinction may with good reason be applied to this class of cases or not, it seems to have obtained recognition by the Supreme Court, and the rule based on this distinction seems to be now well settled. August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303; Chambers v. Gallup, 30 Tex. Civ. App. 424, 70 S. W. 1009 (in which writ of error was denied by the Supreme Court); Collin County Bank v. McCall Hardware Co., 161 S. W. 950; Foust v. Warren, 72 S. W. 404; Western Lumber Company v. C., R. I. & G. Ry. Co., 180 S. W. 644; San Bernardo Town-Site Co. v. Hocker, 176 S. W. 644. The rule announced by these decisions may be stated thus: Where an injunction is sought against the execution of a judgment alleged to be void, it is not necessary to show a meritorious defense to the original cause of action in those cases where the invalidity of the judgment appears upon the face of the record; but, if extrinsic evidence is necessary to establish such invalidity, then it will be necessary for the plaintiff seeking the injunction to show a meritorious defense. The application of this rule to the facts of [359] this case, as above stated, is decisive of the case against appellant. It will'not be necessary to consider other questions presented, and the case will be affirmed.