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: 492
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492 HOUSE & Co. AND BURNETT V. COLLINS. [Term of
Opinion of the Court.
party had been served, and it is there said: "But if the judg"
ment be void, the defendant may plead the matters which
" show its nullity;" and in case of Taylor v. Harris (21 Texas,
439), it is said: " This rule relates to such matters as would
"render the judgment defective or erroneous, or voidable, but
"not to such as would render the judgment absolutely void."
ROBERTS, C. J. The judgment in favor of E. M. Collins
against John H. Burnett, for one hundred dollars is erroneous,
for the want of any legal foundation shewn in her pleadings.
It is founded on a charge of vexatious litigation, which caused
her to incur expenses in attorney's fees in defending this suit,
it being in the nature of a scirefacias to revive a judgment by
default against her testator T. P. Collins, as assignor, and W.
D. Williams, as maker of a note. E. MO. Collins pleaded as a
defense to said judgment, and as a reason why it should not be
revived as to her, that T. P. Collins never indorsed the note,
and was not served with process, and had no notice of the suit
in which the judgment by default was rendered, and that said
Burnett had fraudulently caused it to appear on the record of
said cause that service of process had been made upon Thomas
P. Collins by the deputy-sheriff.
Such facts as set out in her answers might well have been
regarded in the District Court as a cross-bill in equity to set
aside a judgment by default, as between the same parties, the
interest of no third person having intervened, so as to have been
affected thereby. The act thus charged on Burnett in being instrumental
in making the record speak a tflsehood, would have
been a fraud, which if established by proof satisfactorily would
have been sufficient to open the way for her to have put in
issue T. P. Collins's liability upon the alleged indorsemnent of
the note upon which said judgment by default against him
(Freeman on Judgments, Sections 495 and 498; McFadden
v. Lockhart, 7 Texas, 576; McCoy v. Crawford, 9 Texas, 356;
Wilson v. Montgomery, 14 Sm. and Mar., 205; Colt v. Haven,
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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/m1/500/: accessed July 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .