Opinion
No. 1748.
March 6, 1917. Rehearing Denied March 8, 1917.
Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
Action by G. A. Chatterton and others against L. D. Walker. From a judgment for plaintiffs, defendant appeals. Affirmed.
Y. D. Harrison, of Marshall, for appellant. F. H. Prendergast, of Marshall, for appellees.
This suit was instituted by the appellees against the appellant to revive a judgment. The appellant pleaded, among other defenses, that the judgment sought to be revived had been rendered against him without any notice, service of process or appearance by him, and for that reason was void. He also pleaded payment in part of the debt upon which the judgment was founded. In a trial before the court without a jury Judgment was rendered in favor of the plaintiff below, reviving the judgment and allowing a credit of $3,300 as payment made after the rendition of the original judgment. The court filed findings and conclusions which furnish a fair statement of the material facts and the issues involved, which are substantially as follows: On August 12, 1904, W. A. Chatterton, under whom the appellees claim, recovered a judgment in the district court of Harrison county, Tex., in cause No. 11063, in which there were three defendants, the Texas Southern Railway Company, the Delaware Western Construction Company, and the appellant, L. E. Walker. The basis of that suit was a note executed by the Delaware Western Construction Company in the sum of $15,000, bearing 10 per cent. interest per annum. Judgment was rendered in favor of the plaintiff in that suit against the Delaware Western Construction Company and L. E. Walker in the sum of $16,550, and against the Texas Southern Railway Company for the sum of $31,500. The judgment contained the following recital:
"This day came on to be heard the above cause, and the plaintiff appeared by attorney and the defendants appeared by attorney, and the matters of law and of fact were submitted to the court without a jury, and the court heard the pleadings and evidence and finds for plaintiff," etc.
In September, 1904, $3,300 had been paid on that judgment. Since that time the Texas Southern Railway Company has become insolvent; all of its property has been sold and its charter forfeited. The Delaware Western Construction Company is also insolvent, has ceased to do business, and its charter has been forfeited. No execution was ever issued on that judgment, and at the time this suit was instituted it was dormant. W. A. Chatterton, the original plaintiff, died in April, 1910, leaving as his only heirs and representatives the plaintiffs in this suit. L. E. Walker, the appellant, was president of the Delaware Western Construction Company and of the Texas Southern Railway Company, and upon him was served the process in cause No. 11063 against those two companies. After the rendition of the judgment in favor of Chatterton in that suit the Texas Southern Railway Company was placed in the hands of a receiver, and Chatterton, the owner of that judgment, became one of the Interveners in the receivership proceedings. The appellant, Walker, assisted the attorneys for the receiver in an effort to set aside that judgment, and was connected in different ways with other proceedings involved in the receivership. The court also finds that Walker knew of the pendency of the suit against the Texas Southern Railway Company, the Delaware Western Construction Company and himself as early as August 25, 1904, but that he did not then know that judgment had been rendered against him individually.
The record contains a bill of exception, in which it is stated that the appellant offered to prove the want of any service upon Walker in the original suit and the fact that he had made no appearance and had not authorized any person to appear for him. He also offered evidence, some of which tended to show a partial defense to the judgment rendered against the appellant. It appears from the record that the court, after hearing the evidence, refused to consider it, upon the ground that it was inadmissible for any purpose as a defense in this suit, holding that the judgment was valid and conclusive. It is contended that this action of the court was error, and several assignments based upon that proposition are presented in the appellant's brief.
The appellant insists that his answer was not merely a defense to the suit to revive the original judgment, but that it was in the nature of a bill of review seeking to set aside the original judgment upon the ground that the latter was void for lack of jurisdiction over the person of the appellant at the time it was rendered. Conceding that this contention is correct, that the evidence tending to show that no citation had ever been served upon the appellant, and that he had not appeared in the original suit, was material and admissible, the propriety of the court's refusing to consider such testimony must depend upon other conditions. A suit to cancel a judgment, whether prosecuted as an independent action or in the form of a cross-bill, is an appeal to the equitable powers of the court. When the record discloses that the judgment attacked is valid upon its face it devolves upon the party seeking its annulment to show, not only no service of citation or appearance, but that he has a good defense to the suit. House et al. v. Collins, 42 Tex. 486; August Kern Barber Supply Co. v. Freeze, 96 Tex. 516, 74 S.W. 304; Masterson v. Ashcom, 54 Tex. 324.
The trial court heard all of the evidence offered, and passed upon its sufficiency as a defense or as grounds for setting aside the original judgment. That evidence is not such as required the rendition of a different judgment upon the merits. It follows therefore that, the facts being such as to warrant a finding of an insufficient defense to the original suit, we must assume that the trial court was justified in rendering the judgment from which this appeal is prosecuted, and it is accordingly affirmed.