We adopt from brief of appellants their statement of the nature and result of the suit:
"Appellee, as plaintiff in the court below, brought suit against appellants in the District Court of Atascosa County on the 22d day of August, 1894, on their note for the sum of $650, due February 1, 1894, with 10 per cent interest from August 1, 1893, and 12 per cent attorney's fees. He alleges the execution and delivery by him to the said R.C. and A.V. Holland of a deed to lots Nos. 109, 110, 117, and 118 in the town of Pleasanton, in the said Atascosa County, and the execution and delivery by the said R.C. A.V. Holland of the note sued on as a part of the consideration for the execution of said deed. That said note was secured by a vendor's lien on said town lots expressly reserved in said deed and in said note, and was further secured by a chattel mortgage executed to him by said defendants on 25 head of horses.
Defendant answered by general demurrer, general denial, plea of failure of consideration in the sum of $388.35, and also pleaded an offset amounting to $288.
At the April Term, 1895, of the court, an agreed judgment for plaintiff was rendered for the sum of $425 and all costs of suit, with a foreclosure of his vendor's lien on said town lots and his mortgage on the said 25 head of horses, and awarding all process necessary to carry the same into execution, which judgment also provided that it was conclusive of all matters involved in said suit, except as to an item of $90 pleaded as an offset by defendants.
On the 13th day of September, 1895, plaintiff filed in this case what he styles his `supplemental bill,' alleging in substance: That on or about August 1, 1892, he sold to defendants the said lots Nos. 109, 110, 117 and 118, together with the hotel building and other improvements thereon, and also sold defendants certain household and kitchen furniture situated in said hotel for a consideration of $2000, of which $150 *Page 587 was paid in cash and the remainder secured by a lien on the whole of said property and upon 25 head of horses; and that on or about September 22, 1893, plaintiff executed and delivered to defendants a deed to said property, and that defendants, for the balance of the purchase money, executed to plaintiff their three notes, payable to the order of plaintiff as follows, to-wit: One for $650, due February 1, 1894; one for $600, due January 1, 1895, and one for $600, due January 1, 1896; all of said notes bearing interest at the rate of 10 per cent per annum from date, and stipulating for 12 per cent attorney's fees if placed in the hands of an attorney for collection, and that a lien was reserved on all of said property to secure the payment of said notes. That this suit was filed by plaintiff on the first of said notes on August 22, 1894, and that on January 11, 1895, plaintiff filed suit in said District Court on the second of said notes, which suit is styled J.W. Preston v. R.C. and A.V. Holland, No. 556, and is still pending and undisposed of; and that in this suit, on April 17, 1895, plaintiff recovered against defendants a judgment for $425 and costs of suit and establishing a lien on all of said property for the amount of said judgment; that said judgment had not been appealed from, was still unsatisfied and unexecuted; that in said suit No. 556, T.W. Hankinson was on the 31st day of August, 1895, appointed by the court receiver of said real and personal property sold by plaintiff to defendants, and on the 4th day of September, 1895, was, by the sheriff of Atascosa County, placed in possession of said property; that said judgment and said notes are still unpaid and are paramount liens on said real and personal property. Plaintiff further represented that in entering the judgment of April 17, 1895, there was an omission to reserve and fix any lien on the surplus that might arise from the sale of said property after satisfying said judgment, or to make any disposition of said surplus, and that he was advised that it was unsafe for him to have said decree executed until further directions from the court in regard to the disposition of the same should be obtained. He also alleged other matters not necessary to mention.
Defendants answered by general and special demurrers, general denial and pleaded specially that the judgment rendered in this cause on April 17, 1895, was a final judgment, by agreement, and by its terms was conclusive of all matters involved in this suit except as to an item of $90 pleaded as a setoff by defendants. That this suit had been pending since August 22, 1894, and that plaintiff had at no time during the pendency of this suit, prior to the filing of his supplemental bill, by anything appearing in the record in this case, asserted any other lien on the property mentioned in said supplemental bill than that foreclosed in said judgment, and that by his failure to assert such other and further lien, if any he had, by proper pleadings filed at the proper time, he had waived all such other and further liens and was estopped from asserting the same.
The case being called for trial, plaintiff abandoned that part of his *Page 588 prayer for relief which sought a sale of the personal property in the hands of the receiver, in cause No. 556.
Defendant's demurrers were all overruled, and judgment was rendered for plaintiff as prayed for in his `supplemental bill,' in reference to the sale of the real property therein mentioned, ordering a sale of real property by T.W. Hankinson, receiver, and that after paying off the said judgment of April 17, 1895, he hold the surplus arising from such sale subject to the further order of the court, charged with such lien as plaintiff may have on same. Defendants moved for a new trial, which being overruled by the court, they excepted, gave notice of appeal, and, as appellants, have brought the case before this court."
Opinion. — Neither the pleadings in the District Court prescribed by statute, the rules of procedure established by the Supreme Court under authority of the Constitution, nor the decisions of the Appellate Courts of this State authorize or recognize as a pleading such a paper as is denominated in this case a "supplemental bill." In our opinion all the proceedings had in this case on that paper were foreign to the judicial procedure of this State, and wholly unauthorized by the law. This conclusion is not predicated upon the name of the paper, for if such a pleading and the relief sought by it were authorized, they would not be vitiated by a misnomer of the pleading. There can be no question about the judgment rendered in this case on April 17, 1895, being final. It was rendered in accordance with the pleadings and prayer for relief, in a court of competent jurisdiction, and disposed of every issue in the case. That such a judgment can be altered or amended only in a direct proceeding brought for that purpose, showing that the error sought to be corrected was the result of accident, material mistake of the parties, or fraud of the opposite party, is well settled. Brownsville v. Basse, 43 Tex. 440; Johnson v. Templeton,60 Tex. 238; Nevins v. McKie, 61 Tex. 412.
There is no pretense that this proceeding by "supplemental bill" was direct, nor that there was even an error in the judgment sought to be amended. If, in the original petition, the appellee had averred the existence of the notes not due, and that they were liens on the land, upon proof of such allegations, the court could have so molded its decree as to have protected the lien on the property reserved in these notes. Tinsley v. Boykin,46 Tex. 597. But in the absence of such allegations in some pleading of appellee prior to the time the judgment became final, we know of no principle in our procedure authorizing the court, at a subsequent time, upon a supplemental bill, to open up the case and grant such relief. In what we have said we do not mean to intimate that the appellee, by proper pleadings and proof in the suits pending on the other two notes, cannot obtain adequate relief in the nature of that sought by his supplemental bill, nor do we make any ruling upon that question.
It is urged by the appellee that the judgment appealed from is *Page 589 interlocutory, and that no appeal lies from it. Whatever it may be, it is the last judgment entry made in the case, and, while we might not have conceived of its being made in the manner it was, we can imagine nothing further that can be done in the case in the nature of a judgment. If it can have any standing at all, it must be regarded as long as it stands a part of the judgment in a case which is final and subject to revision on appeal. That it is error, is too clear for controversy, and if this error cannot be corrected on appeal, an error founded on a supplemental bill can laugh justice to scorn.
The general demurrer and exceptions to the bill should have been sustained. Therefore, the part of the judgment rendered upon the supplemental bill is reversed and vacated and said bill dismissed.
Reversed and dismissed.
ON MOTION FOR CONCLUSIONS OF FACTS AND FOR REHEARING.