# Robins v. Sandford

> Court of Appeals of Texas · October 29, 1927 · 1 S.W.2d 520

URL: https://www.frixlaw.com/law-library/cases/9828746

## Case

- **Full name:** ROBINS v. SANDFORD Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** October 29, 1927
- **Citations:** 1 S.W.2d 520
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Conner
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

On Motion for Rehearing.
The able counsel representing the appellant in this case presents an insistent and perhaps plausible motion for rehearing, in which, among other things, he stresses the effect of evidence offered on the trial below not referred to in our opinion. As to this additional matter, which is presented in the eighth paragraph of the motion for rehearing, and as to which we are requested to find additional conclusions, we feel that we must say that, while it is true, as alleged, that appellant offered to prove by Mr. Ward-law, one of the counsel in behalf of appellees, who presented the petition for the appointment of a receiver to the judge who granted it, that he (Wardlaw) prepared the order of court appointing the receiver, and that he then knew, as did also the defendant Sand-ford and Judge Sutton who filed the order, that the petition for the appointment, had not been filed in the district court pf Upton county, we find no specific allegation in appellant’s original or supplemental petition that supports such proof. But, if it be assumed that the pleadings are broad enough to support the offered testimony, it would only tend to show that the judge acted fraudulently,- and hence that the order was in fraud of the court’s jurisdiction. That Judge Sutton had under our statute the general, jurisdiction to appoint a receiver we think canno’t be doubted, nor can it be doubted that the order of appointment refutes the existence of the fact relied upon as showing a want of jurisdiction. If, therefore, it be admitted that Mr. Wardlaw’s testimony is true, and that it must be accepted by us as established, it would not in our judgment authorize the district court of Tarrant county in the suit before us to set aside the order of appointment under consideration.
A domestic judgment that is merely fraud *524 ulent must be set aside in the court where entered, or on appeal, or by proceedings in the nature of a new suit, and not in a separate court having co-ordinate jurisdiction only. Murchison v. White, 54 Tex. 78; Fleming v. Seeligson & Ellis, 57 Tex. 527 ; Texas-Pacific Coal & Oil Co. v. Ames (Tex. Com. App.) 292 S. W. 191 . As opposing this view, appellant cites the cases of Morgan v. Morgan, 1 Tex. Civ. App. 315 , 21 S. W. 154 ; Babcock v. Marshall, 21 Tex. Civ. App. 145 , 50 S. AV. 728; and Chunn v. Gray, 51 Tex. 112 . The case first cited was a decree of divorce rendered in another state or territory, and it was held that such judgment could be collaterally attacked by showing that the court which granted it was without jurisdiction, where neither of the parties resided in the state granting it. The second case (B'abcock v. Morgan) was one in which the plaintiff in the suit declared upon a money judgment against the defendant. The delondant in answer pleaded that the judgment was procured against him in another state by the fraudulent conduct of the plaintiff, in that after suit was brought in the court of foreign jurisdiction, and before judgment was obtained, the plaintiff and defendant had agreed upon a full settlement of the matters then in litigation, in consideration of which the plaintiff had agreed to dismiss the suit, and not prosecute it to judgment. The answer of defendant was upheld by our Austin Court of Civil Appeals. The ease of Chunn v. Gray, which was by our Supreme Court, also involved the construction of a judgment of another state, and it was therein held that the record of such a judgment may be contradicted as to the facts necessary to give the court jurisdiction, notwithstanding it may be recited therein that they exist, and that, if it be shown in such suit that in fact jurisdiction did not attach, the judgment-is a nullity. In all of these cases it was insisted that, under section 1 of article 4 of the Constitution of the United States, full faith and credit should have been given to the judgment attacked. Our Supreme Court, however, has this to say:
“In some, it is contended that judgments of sister states, like domestic judgments, should have ‘uncontrollable verity, which admits of no plea or proof to the contrary’; and in others, that as to the question of jurisdiction, from ‘necessity rather than reason,’ they should be open to inquiry. Ereem. on Judg. §§ 559-566.
“The Supreme Court of the United States, to which the final determination of such cáses appropriately belongs, and its decision of which should have peculiar weight and binding authority, in the elaborate case of Thompson v. Whitman, 18 Wall. 457 [ 21 L. Ed. 897 ], reviews many cases upon this question, and announces the conclusion, that neither the constitutional provision, nor the act of Congress prevents such inquiry into the jurisdiction of the court of another state, and that the record of such judgment may be contradicted as to the facts necessary to give the court jurisdiction, notwithstanding it may be recited therein that they did exist; and if it be shown that in fact such jurisdiction did not attach, the judgment is a nullity.
“The previous decisions of this court sustain the same view. Norwood v. Cobb, 15 Tex. 500 ; Norwood v. Cobb, 24 Tex. 551 .”
The cases referred to, being, as shown, judgments of foreign jurisdiction, cannot be controlling in the ease before us. Here we have an order or judgment of a judge of this state having general jurisdiction which re-’ futes the facts now pleaded as showing a want of jurisdiction on the ground of fraud.
Nor do we think it can be said, as insisted, that the 'attack upon the judgment under consideration is direct and not collateral. We find the following in a note to the definition of the term “collateral” given in Black’s Law Dictionary (2d Ed.) p. 214, to wit:
“A collateral impeachment of a judgment or decree is an attempt made to destroy or evade its effect as an. estoppel, by reopening the merits of the cause or by showing reasons why the judgment should not have been rendered or should not have a conclusive effect, in a collateral proceeding, i. ¾,, in any action other than that in which the judgment was rendered; for, if this be done upon appeal, error, or certiorari, the impeachment is direct. Burke v. Loan Ass’n, 25 Mont. 315 , 64 P. 881 , 87 Am. St. Rep. 416 ; Crawford v. McDonald, 88 Tex. 626 , 33 S. W. 325 ; Morrill v. Morrill, 20 Or. 96 , 25 P. 362 , 11 L. R. A, 155, 23 Am. St. Rep. 95 ; Harman v. Moore, 112 Ind. 221 , 13 N. E. 718 ; Schneider v. Sellers, 25 Tex. Civ. App. 226 , 61 S. W. 541 ; Bitzer v. Mereke, 111 Ky. 299 , 63 S. W. 771 .”
The case of Maddox v. Summerlin, 92 Tex. 483 , 49 S. W. 1033 , 50 S. W. 567 , was a suit to subject property to the payment of a judgment. A plea that plaintiff was precluded by previous, judgments of another court holding that property not liable was made by supplemental petition, alleging the invalidity of the judgment so pleaded because obtained by false swearing. It was held that the attack was collateral, and the judgment could not • be so impeached. Judge Brown, who wrote the opinion, said:
“It is contended in this court that the district court erred, in sustaining exceptions to the supplemental petition setting up the invalidity of the judgments alleged to have been procured by false swearing. This is to be deejned a collateral attack upon those judgments, since it does ' not appear that either of them was rendered in the court in which this suit was pending, and although they may have been procured by fraud, it is the policy of the law not to permit judgments to be attacked in such a proceeding as this upon that ground. Black on Judg. § 296; Van Fleet’s Col. Attack, § 550; Dilling v. Murray, 6 Ind. 324 [ 63 Am. Dec. 385 ]; Buchanan v. Bilger, 64 Tex. 589 ; Fleming v. Seeligson, 57 Tex. 531 ; Crawford v. McDonald, 88 Tex. 626 [ 33 S. W. 328 ]; Clayton v. Hurt, 88 Tex. 595 [ 32 S. W. 876 ]; Williams v. Haynes, 77 Tex. 283 [ 13 S. W. 1029 , 19 Am. St. Rep. 752 ].”
*525 These holdings, we think, are in accord with the legislative policy indicated hy article 1995, Rev. Statutes of 1925, subd. IT, which requires that a suit to set aside a judgment must be brought in the court in’which the judgment was rendered. We think it will be found that the cases in which it has been held that a judgment may be set aside on the ground of fraud, and that such suits constitute a direct attack thereon, are cases instituted in the court in which the judgment was rendered.
Other questions presented in the motion for rehearing are sufficiently disposed of in our original opinion, and the motions for rehearing and for additional conclusions other •than ás above appears are overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828746. Public record. Not legal advice.