# Webb v. City of Fort Worth Ex Rel. West Texas Const. Co.

> Court of Appeals of Texas · November 23, 1929 · 23 S.W.2d 791

URL: https://www.frixlaw.com/law-library/cases/9831868

## Case

- **Full name:** WEBB Et Al. v. CITY OF FORT WORTH for Use of WEST TEXAS CONST. CO.
- **Court:** Court of Appeals of Texas
- **Decided:** November 23, 1929
- **Citations:** 23 S.W.2d 791
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Buck
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9831868

## Opinion text

On Appellant’s Motion for Rehearing.
Appellant vigorously attacks the conclusion reached in our original opinion, and cites a number of cases which it is claimed hold that such an attack as herein involved is a direct attack and not a colláteral attack. The only pertinence of whether the attack is collateral or direct.is involved in consideration of the question as to whether the citizens whose property was sought to be taxed and against whose property was sought a levy to pay for the paving had opportunity to protest against the paving. We think there is no doubt that neither Mrs. L. I. Webb nor B. R. Webb, Jr., had any homestead interest in the property sought to be taxed, as shown in our original opinion. In Glenn v. Dallas County Bois D’Arc Island Levy District, 114 Tex. 325 , 268 S. W. 452 , the Commission of Appeals, speaking through Justice Stay ton, held that the judgment of the levy board in the sphere of its jurisdiction is as immune from attack as the judgment of a court of general jurisdiction. In Crawford v. McDonald, 88 Tex. 626 , 33 S. W. 325 , 328, the question as to whether an injunction suit was a direct or collateral attack was not involved. The suit was an action of trespass to try title in which the plaintiff relied on certain probate orders through which he deraigned title. The orders were fair on their face, but the defendant sought to impeach them by proving dehors the record that the sale was not made at the proper place. The court said: “The question, then, is, can this judgment of confirmation of sale, rendered by a domestic court of general jurisdiction of estates of decedents, in a matter to which its jurisdiction had attached by the granting of an application for an order of sale in a pending administration, be attacked by evidence of matters dehors the record?”
The court holds that the orders of a probate court are entitled to the same protection as the orders and judgments of any other court; that the attack was collateral in its nature and under well-recognized rules of law could not be so made. By way of illustration, the court mentions the different ways that a judgment may be attacked and incidentally *794 alludes to an injunction. Since an, attack by injunction was not involved in tbe cited case, tbe court did not attempt to point out wben or under what circumstances such an attack could be made, but evidently bad in mind an attack on a judgment void for want of jurisdiction like that of Gulf, C. & S. F. Ry. Co. v. Rawlins, 80 Tex. 579 , 16 S. W. 430 , a judgment of a justice court where there was no appeal. The expression upon which appellant relies was not elaborated, because not involved in the suit and evidently- had reference to those somewhat rare instances where the Supreme Court had theretofore discussed the question, and those cases are limited to instances where the judgment was absolutely void. The recent ease of Brown v. Clippinger, 113 Tex. 364 , 256 S. W. 254 , opinion by Justice Greenwood, shows how sparingly the Supreme Court allows injunctive relief and the strict showing required of one seeking such relief.
McMickle v. Rochelle, 59 Tex. Civ. App. 91 , 125 S. W. 74 , is relied on by appellant. The purpose of that suit was to vacate and set aside the judgment attacked and to enjoin the sale under an order of sale issued on the judgment and which had been'levied by the sheriff on certain properly of the complainant. Thus the primary purpose of the suit was to open up and vacate the judgment and the injunction was but ancillary. The suit was filed in the court that had rendered the original judgment, and every element of a direct attack was present. Plaintiff owned certain property in the city of Texarkana upon which he resided. He rendered this property for taxes and paid the taxes thereon. There was a double assessment of the property, and suit was brought on the taxes alleged to be delinquent under the erroneous assessment, and McMickle was sued as an “unknown” owner and cited by publication in violation of the statute. McMickle knew nothing about this judgment for taxes until the property was advertised for sale, whereupon he sued to set aside the judgment, setting up the facts that there was no basis for the judgment, the lack of jurisdiction of the court, and seeking injunction pending the determination of his main suit. We think in this case there was a meritorious defense shown and every essential to a direct attack made, and that the in-junctive relief was purely incidental.
In Dashner v. Wallace, 29 Tex. Civ. App. 151 , 68 S. W. 307 , by the San Antonio Court of Civil Appeals, the plaintiff was a minor when the original judgment was taken against him, and had no knowledge of its existence until years thereafter when an execution was levied on his property and when a writ of garnishment was levied on a company in which he was interested. In his petition he showed that the original judgment was absolutely void for want of jurisdiction and that he had a meritorious defense to the original suit. If the effect of the Dashner Decision is to hold that a plain injunction suit is necessarily a direct attack on a judgment, such ruling is repudiated by the same court in Texas Central R. Co. v. Hoffman, 193 S. W. 1140, 1142 , where the court held that a suit having for its purpose merely to enjoin, the execution of a judgment, and not seeking to open up the judgment or to set it aside, is a collateral attack. Chief Justice Key, speaking for the court, said:
“This motion has been given careful consideration, and our conclusion is that it should be overruled. We do not concur in the contention of appellant’s counsel that this suit constitutes a direct and not a collateral attack upon the judgment formerly rendered by the court against appellant.
“It is true that appellant brought this suit for the purpose of obtaining a writ of injunction to restrain appellee from enforcing the former judgment, and it is also true that in Crawford v. McDonald, 88 Tex. 626 , 33 S. W. 325 , our Supreme Court, in undertaking to define what constitutes a direct attack upon a judgment, included in the definition ‘an injunction to restrain its execution,’ etc., but that was not an injunction suit, and therefore that statement was not necessary to a decision of that ease, and is not binding as authority. However, when an independent suit is brought for the purpose of having a former judgment set aside, and the case restored to the docket and retried, such a suit constitutes a direct attack upon the judgment, although the plaintiff may also ask for a writ of injunction restraining the defendant from seeking to enforce such judgment. But when, as in this case, the plaintiff brings his action solely for the purpose of obtaining a writ of injunction to prevent the enforcement of the former judgment upon the ground that such judgment is absolutely void, because of the fact that he was not served with citation, and did not appear or otherwise waive such service, and does not ask to have the judgment set aside and the case retried upon its merits, such a suit, in our opinion, is not a direct but a collateral attack upon the judgment, and when, as in the instant case, such judgment recites upon its face that the defendant was duly served, then in such collateral attack such recital is conclusive, and evidence will not be heard to impeach it.”
The court further quotes from Black on Judgments to show that the attack made in that suit on the judgment was a collateral and not a direct attack.
The Hoffman Case, is cited with approval by this court in Southern Surety Co. v. Texas Oil Clearing House, 266 S. W. 529 , affirmed by the Supreme Court in 281 S. W. 1045 ; and by the San Antonio Court of Civil Appeals in the case of Oetting v. Mineral Wells Crush Stone Co., 262 S. W. 93 .
*795 In Moore v. Miller (Tex. Civ. App.) 155 S. W. 573 , also relied on by appellant, tbere was an attack ón a sale made under a judgment for fraud and irregularities in connection with tbe. sale and inadequacy of consideration. Tbe court specifically points out that tbe attack was upon tbe sale and not upon tbe judgment. Tbe plaintiff recognized tbe judgment and offered to pay it off.
Patrucio v. Selkirk (Tex. Civ. App.) 160 S. W. 635 , writ of error refused, is cited by appellant apparently on tbe point that in an appropriate way an attack may be made on a judgment by a cross-action.
In Brown v. Clippinger, 113 Tex. 364 , 256 S. W. 254, 255 , heretofore cited, tbe court said:
“In the early decision of Witt v. Kaufman, 25 Tex. Supp. 386 , in a proceeding to enjoin tbe ex'ecution of a judgment of a justice of the peace, which was declared void as against •one oyer whose person tbe court bad not acquired jurisdiction, it was said: ‘But tbe court, having obtained cognizance of tbe case for one purpose, would retain it for tbe further purpose of doing full and complete justice between tbe parties, and would give judgment for tbe plaintiff upon tbe cause of action on which the judgment of tbe justice was rendered, if, upon tbe merits, tbe plaintiff was entitled to judgment. Such is tbe practice as settled by tbe decisions of this court.’
“The rule is shown to be founded on common sense and reason by tbe opinion of Chief Justice Roberts in House v. Collins, 42 Tex. 493 , stating that it would be useless for a court of equity to set aside one judgment when tbe principles of equity would require another adjudication of like import.
“In the case of Piggott v. Addicks, 3 G. Greene (Iowa) 429, 56 Am. Dec. 547 , it is said: ‘The door of equity is only open to such as have been or may be injured, and, before chancery will take jurisdiction, tbe injury sustained or apprehended should be clearly set forth in tbe petition.’
“Speaking of injunctive relief to which one is entitled from a judgment without notice, in Hamblin v. Knight, 81 Tex. 355 , 26 Am. St. Rep. 818 , 16 S. W. 1082 , tbe court said: ‘In every case where such relief is sought by injunction it should be done without delay, or if from any cause delay exists it should be accounted for and excused, in addition to which it must be shown that the party has a meritorious defense to the action.’ Sharp v. Schmidt & Zeigler, 62 Tex. 265 , and Owens v. Cage & Crow, 101 Tex. 289 , 106 S. W. 880 , are to the same effect.”
In the instant case plaintiff in his petition did not allege that the judgment of the board or city commission was absolutely void, but only voidable. The charter of the city of Fort Worth provides for notice to the prop-%rty owner sought to be taxed, and a hearing granted. This notice shall declare the necessity of assessing any part of the cost of proposed improvements against such owner, and shall be served by publishing same for five successive days in some newspaper published in said city and mailing copy thereof by registered letter to the address of each owner, if known, but if not known to the address of his agent or attorney, if known. Under this provision of the charter, it could not be successfully claimed that any abridgement of the right of the citizens sought to be taxed to appear before the board of commissioners or the city council, for the purpose of protesting the levy of any certain tax against them, would make the action of the said board or city council void, but at most it would be merely voidable. Chapter XIV, section 8, of the City Charter, further provides that the property owner, if he has any objection to such assessment, or to the making of such improvement or complains of any invalidity or irregularity in the proceedings with reference thereto, or any other objection, that he shall file his objections in writing, and that thereafter the board of commissioners shall hear and determine the same, and that the objections to the regularity of any proceedings by the board of commissioners shall be held to be waived unless presented at the time and in the manner specified in this section of the charter. In the instant case, the charter provisions as to the means of preserving the right of objection was not followed by either of the appellants in this case or any of the property owners. Therefore we conclude that the effort of the appellants to set aside and hold for naught the judgment of the city commission or city council is a collateral attack and not a direct one.
The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9831868. Public record. Not legal advice.