Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 491
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1875.1 HOUSE & Co. AND BURNETT V. COLLINS. 491
Argument for the appellees.
from vexation against a claim for money against an estate;
citing Guthrie v. Guthrie, 17 Texas, 543; Dickenson v. McDermott,
13 Texas, 252. Other propositions were also ably discussed,
to which, in view of the opinion, no reference need
NYunn & Williams, for appellees.
We think the plea of non estfactum was properly admitted,
because the defendant denied that he had ever been served
.7ith process to appear and defend against the original suit, and
this was the first and only opportunity the defendant or her
testator had ever had to avail herself of such a defense. The
rule invoked by plaintiff in error could only have application
where the defendant had been served, and was a party to the
suit, and, therefore, had enjoyed the opportunity of defending
against the same; and even then, it is believed the rule would
admit of some qualification in a court of equity, where the
plaintiff sought a remedy, as the court would insist on knowing
that the plaintiff was equitably entitled, before it would grant
the relief sought. (See McFadden v. Lockhart, 7 Texas, 574;
Horan v. Wahrenberger, 9 Texas, 319.)
However, we think that it might be conceded that the defendant
in error had no right to file a motion to dismiss, as
was done, and that the plea of non estfactum was not admissible,
and still no reason would thereby be furnished for disturbirg
this verdict and judgment. The defendant in error
pleaded that no service on Thomas P. Collins had ever been
had. This was a fact that could unquestionably be inquired into,
and, if the plea was true, the court would not substitute or
revive a judgment which thus appeared to be a nullity. (See
McCoy v. Crawford, 9 Texas, 356; Roberts v. Stockslayer, 4
Texas, 310; McFadden v. Lockhart, 7 Texas, 575.)
To show that no matter can be averred in this proceeding
anterior to the judgment, plaintiff in error cites Bullock v.
Ballew, (9 Texas, 500), which rule has application only when the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/499/: accessed April 26, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .