Masterson v. Ashcom

Citations

• 54 Tex. 324
• 1881 Tex. LEXIS 27

Syllabus

<p>1. JODGMNT,—Eight years after the rendition of a monied judgment against a party in a justice’s court, he obtained an injunction to restrain its collection, on the ground that he had never been served with process, was not a citizen of the county when the judgment was rendered, and would not have been indebted on a fair settlement to him who obtained the judgment. The judgment entry of the justice of the peace recited the appearance of the party by attorney, naming the attorney. Held —</p> <p>1. There is a marked distinction between a question of mere personal privilege to be sued in the precinct and county of one’s residence, and of jurisdiction proper, which cannot be waived.</p> <p>2. The justice’s court having jurisdiction of the subject matter, if the party was irregularly sued in a precinct or county where he did not reside, it would have jurisdiction over the person also, if the privilege of being sued elsewhere was not pleaded in abatement.</p> <p>3. No opinion expressed as to whether a party thus sued could, in the district court, by suit in the nature of a bill in equity, controvert the sheriff's return showing service, and by parol establish that there was in fact no service or appearance. If this were permitted, it would only be on distinct and clear averments, supported by clear and satisfactory evidence.</p> <p>4. There was no allegation in the pleading denying the recitation of the judgment, which showed an appearance by attorney, or that he did not in fact have notice of the judgment, nor was the delay in seeking relief explained.</p> <p>5. It devolved on the party, not. only to show that the judgment was fraudulently or unduly obtained, but that he had a good legal or equitable defense.</p> <p>6. Though the party alleged that he was not indebted to him who obtained the judgment, he failed to establish it by evidence.</p> <p>7,. The judgment of the district court, declaring null and void the judgment of the justice of the peace, was erroneous.</p>