Williams v. Borchers

COBBS, J. On the 15th day of April, 1915, in the suit of Neta I. Henderson v. Henry Borchers et al., pending in the county civil court of Bexar county, plaintiff recovered a judgment upon the recitation of service duly made upon and against the defendants, Borchers and Katherina Borchers, and S. E. Dowdy, as surety, for the sum of $457.01, with interest at the rate of 10 per cent, per annum, with foreclosure of a chattel lien upon certain personal property. No appeal was ever taken from this judgment, and it has remained in full force and effect ever since. At the time said judgment was taken the-said Katherina and Henry Borchers were husband and wife, and so recited in the pleading. On the 7th day of April, 1915, an abstract of this judgment was duly filed in the records of Bexar county. While this petition showed that Henry Borchers and Katherina Borchers were husband and wife, it contained no allegations showing any statutory liability that made the debt a charge on the wife’s estate or for the bene [1054] fit of her separate property, or for necessaries furnished to her or her children. Some time during the year 1916 the said Katherina obtained a divorce from her said husband.' One-half of the judgment was assigned to Ben P. Lane. Neta X. Henderson died leaving Alice B. Williams, wife of E. J. Williams, her sole heir. S. E. Howdy has died since the rendition of the judgment leaving his wife, Kate Dowdy, and the following children: Willie Dowdy, Lucille Dowdy, Eugene Dowdy, Walter Dowdy, and Earl Dowdy, the surviving heirs. On the 29th day of August, 191S, this suit was brought to set dside the said judgment in so far as it awarded a personal judgment against Katherina Borchers. After the institution of said suit Ben P. Lane, Alice B. Williams and her husband, E. J. Williams, instituted a suit in one of the district courts of Bexar • county seeking to foreclose the judgment lien arising out of the judgment against the said Katherina Borchers in said cause No. 6509. On the 4th day of June, 1921, the said county court granted a temporary injunction against Alice B. Williams and her husband, E. J. Williams, and Ben Lane, restraining them from prosecuting said suit in the district court until the county court disposed of said cause. The trial court found that the indebtedness evidenced by the chattel mortgage recited in the judgment was not incurred by Katherina Borchers for the benefit of her separate property, nor contracted by her for necessaries furnished herself or her children. The case was tried by the court who filed findings of fact and conclusions .of law. The court rendered judgment awarding a personal judgment setting aside and annulling the original judgment against Katherina Borch-ers, and perpetuated the injunction granted against Alice B. Williams, F. J. Williams, and Ben P. Lane. There were many special exceptions filed by appellant’s attacking the appellee’s petition for relief, but the disposition we make of this case renders it unprofitable, both as to time and space to discuss the special rulings and questions there raised. The questions here for determination are: Was the judgment void, and, if not, could it be collaterally attacked? The judgment was a personal one against Mrs. Katherina Borchers, and her husband, upon a note and chattel mortgage signed by them both; neither the pleadings nor judgment describing that the obligation was for the benefit of her separate estate. The appellants’ first contention is that, if such an attack could be made in an independent suit or motion in the nature of a new trial against an erroneous judgment, it then does not allege facts that would entitle them to any- relief in such a proceeding filed after term trial.- It is not alleged there was any fraud in its procurement, or other sufficient equitable grounds, if such an .attack were permissible. Mrs. Borchers was sued on an obligation she signed jointly with her husband and duly cited and called to make any defense that she may have had. No plea of coverture nor other defense was timely made by her or otherwise presented claiming her exemption from a personal judgment, or that it was not an obligation binding on her, or upon her separate estate. In the eyes of the law, she was in the court every minute of the time, and charged with knowledge of every step taken. She had the legal right to appeal her case, but she will not be heard after term time, based upon no sufficient reasons, to set aside the solemn judgment of the court rendered upon personal service. Bergstrom v. Kiel, 28 Tex. Civ. App. 532, 67 S. W. 781; Taylor v. Hustead & Tucker (Tex. Civ. App.) 243 S. W. 768. Under the authorities, common sense, justice, and fair dealing between man and man, and married women, the one as the other, under the law, alike stand bound by the judgments of courts of competent jurisdiction, or else the judgments of such courts become a joke and a farce. Bergstrom v. Kiel, 28 Tex. Civ. App. 532, 67 S. W. 781: Burnley v. Rice, 21 Tex. 171; Robbie v. Upson (Tex. Civ. App.) 153 S. W. 406; Kruegel v. Cobb et al., 58 Tex. Civ. App. 449, 124 S. W. 723; Johnson et al. v. Templeton, 60 Tex. 238; Nichols v. Dibrell, 61 Tex. 539; Gulf, T. & W. R. Co. v. Lunn et al. (Tex. Civ. App.) 141 S. W. 538; Drinkard v. Jenkins et ux. (Tex. Civ. App.) 207 S. W. 353. To attack a judgment collaterally, it must, with other equitable reasons, be clearly shown that it was void because of want of service, obtained by fraud, or other facts equivalent thereto that . renders it void. White v. Powell, 38 Tex. Civ. App. 38, 84 S. W. 836; Clegg v. Darragh, 63 Tex. 361. It is said in Railway Co. v. Lunn (Tex. Civ. App.) 141 S. W. 540: “In order to entitle the appellant to the relief sought in this proceeding it must appear from the petition that it alleged the existence of facts that called for the exercise of the general power of the district court to grant equitable relief from a judgment rendered in a court of law.' This relief will be given when it is shown that the judgment attacked is void for lack of jurisdiction in the court over the subject-matter ot the litigation, or over the parties to the suit (Railway Co. v. Rawlins, 80 Tex. 580, 16 S. W. 430; Railway Co. v. Dowe, supra), or when it is shown that the judgment was procured by fraud, accident, or mistake.” Such a judgment may appear palpably erroneous, or that, if the proper defense of coverture and the like had been presented and urged, as they were not, so that no per [1055] sonal judgment could have been entered, still that would not mate such a judgment void. Trimble v. Miller, 24 Tex. 215; Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876. We do not agree with appellee that generally a judgment . upon a matter not made an issue by the pleadings is absolutely void. Such is not the law. It may be voidable. This judgment against Mrs. Borchers is not void. The court had jurisdiction. She was duly cited. She was sued on a joint obligation with her husband. The matter of her personal liability was put directly in issue by the suit to recover against her thereon. It sought a monied judgment against her and the foreclosure of a chattel mortgage lien. This court has held, as contended by appellee, that a court is without jurisdiction to render a judgment against one party in favor of another without the pleadings filed have a basis in favor of such party with process duly served upon him. Edinburg Irr. Co. v. Paschen (Tex. Civ. App.) 223 S. W. 329. But appellees are unfortunate in not bringing this case within that rule. The distinguishing feature is that the court did have jurisdiction to pronounce a judgment on the pleading seeking a personal judgment upon personal service duly made against both. If the proper plea of coverture had been presented, or proper -defense timely made, no personal judgment may have been entered, or when rendered permitted to stand, for, in order to recover against a married woman, where the proper plea and defense is timely urged, and the pleading promptly challenged to, show a sufficient eause of action, it must appear therefrom that the debt was incurred by her for the benefit of her separate property, or for necessaries purchased by her, but to the contrary where there is no defense made to such a petition as set forth herein. Appellees admit in the brief: “The suit of Katherina Borchers to have the judgment set aside is not a suit upon any strict equitable grounds, such as fraud, accident, or mistake. Her suit to have the judgment set aside is an assertion of a strict legal right. If the judgment was an absolute nullity and void, then she had a legal right, as contra-distinguished from an equitable right, to have the judgment set aside at any time. Likewise, if the judgment against her was merely voidable, still Katherina Borchers sought to have it vacated on the strict legal ground that no cause of action was pleaded against her upon which a judgment could be based, that is to say; that the judgment rendered against her was at least erroneous on its face. And, since Kathe-rina Borchers in any event was asserting a legal right, when she first, filed this" suit to vacate the judgment, the equitable doctrine of laches does not apply.” The judgment sought to be set aside was not void, and the appellee cannot be heard now in this proceeding to have it canceled. It was rendered upon a pleading sufficient to support a personal judgment, with the proper parties before the court, from which no appeal was prosecuted. Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347. The judgment of the trial court is reversed and hereby rendered against appel-lees in favor of. appellants. It is further therefore ordered that the injunction be dissolved, and judgment here rendered against appellee and the sureties on the injunction bound for all costs.