On Motion for Rehearing. Special attack is made on our holding in the original opinion that on a direct attack a meritorious defense need not be proven, where the record or facts disclosed that the defendant was not served with citation, and no appearance was entered. In the case of Scales v. Wren, 103 Tex. 304,127 S.W. 164, where the owner of land had his title on record, ascertainable by the county attorney who had filed the suit, and the owner was within the jurisdiction of the court, it was held by the Supreme Court that he was not a party to nor bound by a judgment and sale of the land for taxes thereunder in a proceeding against the "unknown owner" of the land. The attack in this case was collateral, but Chief Justice Gaines, speaking for the court, said:
"It is not easy to overcome a judgment upon collateral attack, for the reason that every question that could have been determined in the case is presumed to have been correctly determined in the former judgment and has become res adjudicata. But the question in the instant case is, Have you got the proper parties? The statute authorizes a suit against the `unknown owner' of the land and not against an owner who is known and whose name and residence could have been discovered upon proper inquiry. Hence a judgment against the unknown owner does not conclude the title of one who is known or can be known. No one can doubt that the judgment is conclusive as between the state and the unknown owner; but here we have a case in which the owner was known or could have been known by the slightest diligence. The known owner is entitled to his day in court and to be heard on defense of his rights. He is entitled to service of citation if he be within the jurisdiction of the court. Not having been served with process and being within the jurisdiction of the court, and not being an unknown owner, he was not a party to the proceedings and we fail to see how he can be concluded by the judgment.
Therefore the judgment of the Court of Civil Appeals is affirmed."
In Adams v. First Nat. Bank of San Augustine, 294 S.W. 909, by the Beaumont Court of Civil Appeals, a judgment had been taken by plaintiff during the absence of the defendant and her counsel. An original suit was filed in the district court of San Augustine county by Mrs. Adams to cancel and annul the judgment rendered against her and her codefendant. In disposing of the case, the court said:
"Before appellant in this case would be entitled to the relief sought by her, it was requisite that her petition allege sufficient facts to acquit herself and attorney of a negligent failure to be present at the trial of the former suit, and also it was incumbent upon her to allege facts showing that she had a meritorious defense to the former suit, which she was prevented from making by the fraud as alleged by her on the part of the bank's attorney in that *Page 465 suit. If her petition in this case made this showing, she was entitled to have the former judgment as to her canceled and annulled and a new trial granted as prayed by her. We agree with what seems to have been the view of the trial court, that appellant's petition in this suit alleged facts which, if true, acquitted her and her attorney of a negligent failure to be present at the trial of the former suit. The sufficiency of the facts set up as an excuse for their absence was a question of law for the court, and he evidently determined that in appellant's favor when he overruled a general demurrer, but as to whether the facts alleged by her acquitted herself and attorney of a negligent failure to be present at the former trial made an issue of fact which was for the determination of the jury in the case, and the court could not take that issue away from the jury."
34 Corpus Juris, p. 333, in discussing the sufficiency of the pleadings to authorize and require the setting aside of a judgment, where a separate suit is filed therefor, says:
"Exceptions to the rule have been recognized in the following classes of cases in which the party is entitled to have judgment against him vacated without any showing of merit, namely, where the judgment attacked is void for want of jurisdiction, although some cases hold that merit must be shown as a condition of equitable relief," etc.
This authority cites Union Pac. R. Co. v. Miller (Tex.Civ.App.)192 S.W. 358, and Miller v. Santa Anna First State Bank Trust Co. (Tex.Civ.App.) 184 S.W. 614; McCaulley v. Western Nat. Bank (Tex.Civ.App.) 173 S.W. 1000 — all Texas cases.
In Union Pac. Ry. Co. v. Miller, supra, the Amarillo Court of Civil Appeals, in an opinion by Justice Boyce, said:
"Some confusion at one time existed in the decisions of this state as to whether or not in this character of case it would be necessary for one seeking to enjoin a judgment alleged to be void, to allege and prove that he had a meritorious defense to the original cause of action on which the judgment was rendered. Out of this confusion a rule of decision, based on a distinction between judgments where the invalidity appears from the face of the record and those where the invalidity is only made to appear by extrinsic evidence, has been evolved, which, it is claimed, will reconcile the apparent conflict. Whether this distinction may with good reason be applied to this class of cases or not, it seems to have obtained recognition by the Supreme Court, and the rule based on this distinction seems to be now well settled. August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303; Chambers v. Gallup,30 Tex. Civ. App. 424, 70 S.W. 1009 (in which writ of error was denied by the Supreme Court); Collin County Bank v. McCall Hardware Co. [Tex. Civ. App.] 161 S.W. 950; Foust v. Warren [Tex. Civ. App.] 72 S.W. 404; Western Lumber Company v. C., R. I. G. R. Co. [Tex. Civ. App.] 180 S.W. 644; San Bernardo Townsite Co. v. Hocker [Tex. Civ. App.] 176 S.W. 644. The rule announced by these decisions may be stated thus: Where an injunction is sought against the execution of a judgment alleged to be void, it is not necessary to show a meritorious defense to the original cause of action in those cases where the invalidity of the judgment appears upon the face of the record; but, if extrinsic evidence is necessary to establish such invalidity, then it will be necessary for the plaintiff seeking the injunction to show a meritorious defense.
"The application of this rule to the facts of this case, as above stated, is decisive of the case against appellant. It will not be necessary to consider other questions presented, and the case will be affirmed."
In Miller v. First State Bank Trust Co., supra, it is held that, where no legal service is had upon defendant, a judgment by default may be set aside without showing a meritorious defense or a sufficient excuse for failure to appear; the judgment being void for want of jurisdiction. This case does not appear to have gone to the Supreme Court.
In McCaulley v. Western Nat. Bank, supra, by this court, it was held that on a writ of error to a default judgment, as being based on a defective citation, defendants need not allege the nature of their defense to the action, the rule of meritorious defense being confined to collateral attacks. This case was not reviewed by the Supreme Court, but the holding has been cited with approval in at least two cases, to wit, Godshalk v. Martin, 200 S.W. 535, by the Amarillo Court of Civil Appeals, and in Bridges v. Hollifield, 208 S.W. 756, by the Beaumont Court of Civil Appeals.
In Hanson v. Wolcott, 19 Kan. 207, it is said:
"It is true, that section 572 of the Civil Code provides that a judgment shall not be vacated on motion, or petition, until it is adjudged that there is a valid defense to the action; but this section in the nature of things does not apply to judgments rendered by a court having no jurisdiction of the person of the defendant, and where the judgment, so-called, is a nullity. Independent of sections 572 and 575, the court has the power to vacate void judgments. The addition of the clause in section 575, gives no additional power to the court. It simply enunciates a power it always possessed."
In Walker v. Chatterton, 222 S.W. 1100, by Commission of Appeals, presiding Justice Sonfield writing the opinion, the court held that, a judgment rendered against the surety reciting appearance by the surety, in an action on such judgment, want of jurisdiction over the person of the surety may be set up by him, such defense not constituting a collateral attack, but a direct attack.
But, even if we be mistaken as to the necessity of proving a meritorious defense, we think the facts stated in our original opinion, which were proven, were sufficient, in the absence of proof to the contrary, to require a reversal of the original judgment, especially in view of the fact that Mrs. Jameson *Page 466 testified that McCall represented to her, at the time she executed the contract, that her husband was owing the bank and McCall $4,500; that about $2,000 was due the bank, and $2,500 was due McCall, but McCall pleaded in this case that, at the time of the death of S. M. Jameson, the latter was indebted to the Farmers' Merchants' Bank of Nocona in the sum of $970, with interest, and was indebted to him in "a sum of money amounting to approximately $3,500, the exact amount of which is to this defendant unknown at this time."
We are of the opinion that our former judgment correctly disposed of the questions involved in this case, and the motion for rehearing is overruled.