Hamblen v. Knight

Citations

• 60 Tex. 36
• 1883 Tex. LEXIS 255

Syllabus

<p>1. Pleading.—An allegation that a note which plaintiff had signed as surety for another was after its execution fraudulently altered, so as to make it a note for a larger specified sum, “either by the administrator to whom it was executed, or by the principal in the note, and that this was done without the knowledge of the surety,” was held sufficiently specific in this case.</p> <p>3. Practice — Injunction.— After exceptions to the sufficiency of a petition for injunction, it is too late for the defendant to urge for the first time after appeal that the allegations of the petition were not verified by affidavit. When the relief by injunction is sought after final hearing, the petition for injunction need not, as a general rule, be sworn to.</p> <p>3. Evidence — Return of sheriff.— In a direct proceeding to set aside a judgment, the judgment may be impeached by showing that the defendant in the suit in which it was rendered was never served with process; that the return of the sheriff showing service was false, and was the result of a fraudulent collusion between him and the plaintiff in the judgment. This case distinguished from Lawler v. White, 37 Tex., 350, and Fitch v. Boyer, 51 Tex., 344.</p> <p>4. Practice.— In a suit to set aside a former judgment on account of a fraudulent combination between the plaintiff in whose favor it was rendered, and the sheriff, it was alleged that ■ the defendant had never been served with process; that the judgment was rendered on the 6th of January, 1874, and that defendant did not learn that fact until the 11th of the same month; but he failed to state whether the court which rendered the judgment had adjourned for the term when he first learned that the judgment had been rendered. Held,</p> <p>(1) That an exception based on the plaintiff’s failure to state whether the term of the court had adjourned when he first learned that a judgment had been rendered against him, would not be heard when presented in the supreme court for