I respectfully dissent from the holding of the majority in this case, and think the judgment should be affirmed, because I believe the plea of res judicata was sustained. After appellants filed their petition in the nature of a bill in equity in the district court of Wichita county to set aside the original judgment in cause No. 3607 upon the ground that Mrs. Rogers was insane at the time of its rendition, and that it was procured through fraud, Waggoner filed his motion in cause No. 3607 to have, by a judgment entered nunc pro tune, the description of the land in said original judgment corrected. By their answer filed to that motion appellants presented the issue of fraud, and thereby met the effort of Waggoner to correct the original judgment with pleadings attacking its validity and praying that it be declared void. The first question to be considered is: Under the Texas practice, when a motion is made by plaintiff in a judgment to correct the judgment entry, and all parties have been duly served with notice of the motion, is it permissible for the defendant in the judgment to raise the issue of fraud in its rendition and ask that it be annulled, or must he bring a separate and independent action for that purpose? There is no statute requiring a separate action in such cases, and we must look to general rules of procedure and practice for an answer. As stated in the majority opinion:
"The power to correct the records exists in the court, not by reason of its continued jurisdiction over the subject-matter, but by virtue of its continuing power over its records."
The quotation is from Hickey v. Behrens, 75 Tex. 495, 12 S.W. 681, and neither in that case nor in any other cited by the majority is it said or even intimated that defendants in such a motion may not, by their answer, assail the judgment for fraud and try both the right, on the one hand, to have the judgment entry amended, and, on the other, to have the judgment in toto set aside in one and the same proceeding. Such a holding, in my opinion, would be at variance with the spirit of our laws. It has ever been the policy of the courts of Texas to discourage a multiplicity of suits and to favor the settling in one action of all the controversies practicable. I see nothing impracticable in a proceeding by one party to a judgment to correct it being considered together with a petition by the other to annul it. The liberality of our courts in favoring the joinder of causes, the consolidation of suits and their further efforts to discourage circuity of action, splitting of causes of action and a multiplicity of suits, and the favor with which pleas of intervention and interpleader are looked upon is so well known that the citation of cases to sustain my contention in this particular, it would seem, is superfluous.
"The rule against multiplicity of suits has peculiar force in our system of procedure. Within reasonable limits it is the cardinal principle as to joinder of parties and causes of action. Even jurisdictions which are distinct and separate in other states are blended in our system; legal and equitable causes of action and grounds of defense may be adjusted in a single controversy." Clegg v. Varnell,18 Tex. 304; Herring v. Mason, 17 Tex. Civ. App. 559, 43 S.W. 797.
A few illustrations showing the practical application of the policy by the courts may not be amiss. In the case of Blair v. Gay, 33 Tex. 157, we quote from the syllabus as follows:
"Administrators of a deceased lunatic obtained in the probate court * * * a decree for money against a former guardian of the lunatic's property; and afterwards, but within two years, they brought suit in the district court on the guardian's bond to recover the amount of the decree from the guardian and his sureties. The defendants answered that the decree was rendered without any appearance or answer by the guardian, that the guardian was not indebted to the estate, that the decree was based on Confederate money collected by the guardian from an insolvent debtor of the lunatic, and that the guardian was entitled to credits not allowed him in the decree; and they filed a transcript of the proceedings of the probate court, and prayed that its decree be revised and corrected. Held, that this line of defense was competent, the two years allowed by article 3922, Pas. Dig., for the revision by the district court of the probate court's decree being unexpired, and it being immaterial in what manner the appearance of the parties was obtained in the district court. A policy pervades our whole system of jurisprudence, which requires parties to settle all their controversies in a single suit, if practical."
In the following cases the attack was made on the judgment by cross-bill, and not by an independent action: Clevenger v. Mayfield, 86 S.W. 1062; Hammond v. Atlee, 15 Tex. Civ. App. 267, 39 S.W. 600; Smart v. Panther, 42 Tex. Civ. App. 262, 95 S.W. 679.
In response to plaintiff's motion for a new trial, where defendant for whom a general verdict had been directed admitted certain indebtedness, the court may give plaintiff judgment, and without aid of a jury. Alabama Oil Pipe Line Co. v. Sun Co., 90 S.W. 202. I think the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, relied upon by my Brethren as supporting their position, is a forcible illustration of the rule I am insisting upon. By referring to the report of the case in 135 S.W. 730, and reading it in the same connection, it will be seen that in 1898 Zapp and wife obtained a judgment against Kate Coleman, which became *Page 696 dormant, and in 1902 an execution was issued based upon it and levied upon property belonging to Kate Coleman, who thereupon filed an injunction suit to restrain the sale upon the ground that the judgment was dormant and the property levied upon exempt. In that action Zapp and wife pleaded their judgment and prayed that it be revived. A Waco bank intervened, claiming a lien upon the property levied upon. There was a trial to the court, who made a docket entry, dated April 8, 1903, perpetuating the injunction in favor of Kate Coleman, reviving the judgment against her for the balance due on it and for the intervener bank, foreclosing its lien against both Mrs. Coleman and Zapp and wife. In entering the judgment upon the minutes, that part of it which awarded judgment against Mrs. Coleman in favor of Zapp and wife for the balance due on the original judgment was omitted. A proceeding by scire facias was instituted by Zapp in 1909 to have entered nunc pro tune and also to revive the judgment rendered in April, 1903. Mrs. Coleman contended that such proceeding was an action to correct a judgment and was barred by the statute of limitation. At the time Zapp and wife instituted the proceeding by scire facias to revive their judgment and have it entered nunc pro tunc they sued out an attachment and had it levied on certain personal property for which C. E. Winn filed a claimant's bond. Mrs. Coleman answered, interposing many objections to the relief sought, including a motion to quash the attachment. If a plaintiff in a judgment can file a motion to have it entered nunc pro tunc, and join with it a proceeding to revive the judgment, issue, and attachment based on it, and if in the same action a third party can file a claimant's bond for the property attached and therein a decree can be rendered ordering such judgment entered nunc pro tunc foreclosing the attachment lien and in addition grant a recovery against the husband of Mrs. Coleman, to whom she was married since the original judgment against her was revived the first time, and the judgment settling such a conglomeration of disconnected and unrelated contentions be affirmed by both the Court of Civil Appeals and the Supreme Court, certainly, when plaintiff seeks to have, as in this case, a judgment correctly entered nunc pro tunc the defendant, who alleges she has never had her day in court, can intervene and attack the judgment for fraud. I am convinced that my Brethren have given the language quoted in the majority opinion from the opinion of Chief Justice Phillips in the Coleman-Zapp Case a meaning and interpretation never intended by the writer, because in paragraph 9 (105 Tex. 497, 151 S.W. 1043) Judge Phillips expressly approves the joinder of the scire facias and attachment proceedings with the motion. In the answers filed by appellants they move that the proceeding to correct the judgment be consolidated with their independent suit, numbered 4043 on the docket of the district court, brought to annul the judgment, but no action appears to have been taken by the court upon that part of the prayer. I think under our practice, if consolidation had been ordered by the trial judge, his action should have been sustained. Spencer v. James, 10 Tex. Civ. App. 327, 31 S.W. 540, 43 S.W. 556; Lewis v. Reynolds, 145 S.W. 1072; Tiefel Bros. Winn v. Maxwell, 154 S.W. 319; Young v. Gray, 65 Tex. 99; State v. Moore, 57 Tex. 307.
The majority opinion quotes from Milam County v. Robertson, 47 Tex. 231, language to the effect that after adjournment of the term the jurisdiction or power of the court over its judgment on its merits is unquestionably exhausted. That was a case where a motion was filed in the Supreme Court to vacate a Judgment of that court because it was rendered after two of the appellees had died, their death being shown by affidavits, and the motion having been filed seven years after the Supreme Court's decision. The whole discussion relates exclusively to practice in the Supreme Court, and can, in my opinion, have no bearing whatever upon this case.
I am in tuneful accord with my Brethren and the opinions from which they quote sustaining their pronouncement that the only purpose of a motion to correct a judgment is to have the Judgment entry speak truly the decree as rendered; that, considered alone, it presents no issue between the parties except in respect to the accuracy of the record; that it is powerless to reopen the controversy as closed and sealed by the judgment; and that it makes no such attempt. I have no quarrel with that doctrine, and but for the crossaction of appellants in the instant case I would not be dissenting. The answers and cross-actions had the effect of presenting affirmatively the issue of fraud in the rendition of the judgment in addition to the issue of inaccuracy in its entry as presented by the motion, and was in no sense a motion for new trial or to set aside a judgment by default, and does not come within the rule announced in the Hester and Eddleman Cases cited in the majority opinion. It is true that the effect of the answer was to inject issues upon which either party was entitled to a regular trial before a jury, but none was demanded, and they had a right to try before the court if they preferred to do so. Answers of defendants in which affirmative demands are made, pleas in reconvention, set-offs, counterclaims, cross-actions, cross-bills, interpleaders, actions for cancellation, reformation, and many other forms of relief are too numerous along the well-beaten highway of court procedure in Texas and too familiar to require even a reference to any of the multitude of cases where the right of the defendant to any and all such affirmative relief *Page 697 was not only recognized, but was not questioned. In all such cases the relief sought by the answer might have and frequently has been claimed by an independent action in which the defendant would have been the plaintiff. In the majority opinion it is said:
"We do not mean to say that, if the appellees had answered the issues tendered in appellant's answer to the motion, and the court had actually heard and decided the issues thus made and rendered judgment thereon, we would not consider the matter as being finally disposed of. In such case, under our liberal system of practice, the proceeding and judgment thereon might properly be regarded as a proceeding in an independent action, though it was filed in and took the number and style of the original suit. But the filing of the pleading as a motion, or an answer to a motion, or as a cross-action in the original case, would not destroy its nature, and this brings us back to the first question as to whether it is to be implied that this independent action is disposed of by the entry of an order on the motion in the case proper to correct the judgment. We think not."
I think the issue was squarely before the court, and that the judgment by implication disposed of it. If so, the question of fraud is res judicata.
It was not necessary for Waggoner to file a formal general denial, or any other reply to the cross-action of appellants. His motion was sufficient. The rule announced in Hunt v. Makemson, 56 Tex. 9, 13, is that, when the plaintiff's pleadings state facts amounting to an answer to a cross-action, it is, for the purpose of making the evidence admissible, to be regarded as an answer. If appellant were entitled to have the judgment annulled and set aside, clearly there would be no judgment for Waggoner to have corrected, as prayed for in his motion, and a decision by the court that he was entitled to have it corrected is tantamount to an adverse declaration of its validity.
Up to this point the case is in this condition: (1) In reply to Waggoner's motion to correct appellants filed their cross-bill to amend; (2) the parties have all appeared and are before the court; (3) the issues are sharply drawn in the pleadings on file and unobjected to; (4) a judgment is entered overruling appellant's exceptions to the motion and granting the prayer of the movant, but saying nothing at all about the cross-action. The final question now is: Does such a judgment, rendered under such circumstances, by implication dispose of the issue of fraud presented by the cross-action? I think it does. Appellants appealed from that judgment, but, it seems, in their appeal questioned only the right of Waggoner to amend the judgment on the ground of limitations. See Waggoner v. Rogers, 108 Tex. 328, 193 S.W. 136. The nature of the relief sought by the respective parties is diametrically opposed one to the other. If the original judgment had been declared void, there was no judgment to amend, and a decision of the court that it should be amended necessarily implies that it was valid. Courts do not amend void judgments. In Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161. The Supreme Court, it seems to me, settled this question. Rosen sued Trammell upon notes secured by vendor's lien upon certain lots, including lot No. 7, praying for judgment and foreclosure upon all the lots. Mrs. Trammell made herself a party, and, joined by her husband, pleaded that lot No. 7 was their homestead. They also prayed for damages for the wrongful and malicious issuance and levy of a writ of sequestration. In obedience to the direction of the court the jury returned a verdict against W. M. Trammell for the amount of the notes, for foreclosure of the lien upon all of the lots, and against defendants on their counterclaim for damages. The judgment was entered accordingly, except that it made no express mention of the counterclaim. Neither the verdict nor the judgment mentioned the homestead claim. Trammell and wife appealed, and the appeal was dismissed by the Court of Civil Appeals. Upon writ of error to the Supreme Court, Judge Hawkins, delivering the opinion, said on this question:
"(2) The controlling issue here, as this case is presented to us, is: Was the judgment in question final? If final, the appeal of plaintiffs in error should have been entertained by the Court of Civil Appeals; if not final, the action of that court dismissing said appeal must be sustained. Upon that issue there have long been in this state two well-defined and sharply conflicting lines of decisions by Courts of Civil Appeals. Such conflict arises particularly, it seems, upon the construction given to article 1994, R.S. 1911, relating to the form of judgments of district and county courts; those Courts of Civil Appeals who adhere to a strict rule of construction in the premises holding that a judgment which does not in express terms specifically dispose of a cross-action or counterclaim is not a final judgment, such as will support an appeal, and those adhering to a more liberal rule of construction holding that a judgment may be final even though it disposes of such cross-action or counterclaim by necessary implication only, without expressly mentioning it. Said statute is as follows: `Art. 1994. (1335). The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.'"
After referring to a number of decisions by certain Courts of Civil Appeals, showing the conflict and discussing several decisions of the Supreme Court, Judge Hawkins proceeds:
"In Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, this court held: `The proposition seems to be sound in principle and well supported by authority that, where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff's right to recover upon two causes of action, the *Page 698 judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause.'
"Davies v. Thomson, 92 Tex. 391, 49 S.W. 215, was a suit by the heirs of Thomson, deceased, against the heirs and administrators of Davies, deceased, for recovery of one-half of certain real and personal property held and controlled by Davies at the time of his death, and one-half of all increase and gains in said property since his death, and one-half of all money received from sales of any of said property since that time. If the allegations of the petition were true, plaintiffs were entitled to recover everything sued for by them. The jury found simply: `For the plaintiffs in the sum of $14.000.' The court entered judgment accordingly. Upon appeal, this question was certified to this court: `Is the judgment a final judgment from which an appeal may be taken? The contention is that the verdict and judgment should have in terms made some disposition of the real estate.' In answering said question this court quoted approvingly the foregoing excerpt from its opinion in the Rackley Case, and added: `The proposition there announced was directly involved in the decision of that case and is decisive of the question certified. The judgment, in our opinion, should be construed to mean that the plaintiffs recover of the defendants the sum of $14,000 and costs, and that they are to take nothing more either in the property claimed or in money. We answered the question in the affirmative.'
"The principle which controlled the last-mentioned two cases is, we think, applicable in great measure to this case. The rule is thus stated in Freeman on Judgments, § 279, and note 1: There is no doubt that, if a set-off is presented by defendant in his pleadings, attempted to be supported by evidence to the jury, it will, whether allowed or disallowed, become res judicata. It is settled by the judgment as conclusively, when it does not appear to have been allowed, as though there were an express finding against it'" — citing authorities.
A further clear and emphatic decision by the Supreme Court, which in my judgment is conclusive of this appeal, is in the case of Hermann v. Allen, 103 Tex. 382, 128 S.W. 115, being an action by Allen to recover damages for the wrongful issuance and service upon him of a writ of injunction in a former action against him, and another, by Hermann and another, restraining him from moving a house which belonged to him, but situated on land belonging to Hermann. Judge Williams, for the court, said:
"One of the questions before us arises upon Hermann's plea of res judicata, based on the judgment in the former case. In that action Allen pleaded in reconvention his right to the house, the wrongfulness of the injunction, and damages suffered by him from the service of it upon him. That cause was tried in the district court on its merits, with such plea before the court, and judgment was rendered in favor of the plaintiff therein perpetuating the injunction. We shall assume that the statement of the Court of Civil Appeals that no evidence was offered to show the damages sustained by Allen is correct, although it is questioned by plaintiff in error. Upon Allen's appeal from that judgment the Court of Civil Appeals reversed it ([44 Tex. Civ. App. 125] 97 S.W. 1063), and, proceeding to render such judgment as the trial court should have rendered, adjudged that the injunction be dissolved, that the plaintiffs take nothing by their action, and that defendants recover all costs of suit. Nothing was said in either judgment of the plea in reconvention for damages. In the present case the district court and the Court of Civil Appeals (118 S.W. 794) overruled the contention of plaintiff in error that the claim for damages was adjudicated by the former judgment. The former judgment of the Court of Civil Appeals is the one upon which the question must depend, since that court set aside the judgment of the trial court and substituted its own as the final disposition of the entire cause. It is of the same effect as if it had been rendered by the district court at the end of the trial and no appeal had been taken. Necessarily being the final judgment, it disposed finally of all the issues pending in the cause when it was rendered determining all the rights of the parties in issue therein and becoming the measure of the relief to which they were entitled. The pleadings certainly put in issue: (1) The right of the defendant therein to move the house; and (2) the right of Allen to recover damages caused by Hermann's interference with that right. The judgment determined the first in his favor, saying nothing about the second. This was necessarily an adjudication that that which was given was all that he had shown himself to be entitled to. The necessary legal effect of the failure to award damages for which a claim was pending in the pleadings was a denial of the right to them. This does not mean that it appears the court actually made a decision upon the plea in reconvention. The record does not show whether that was done or not. The proposition is that the necessary legal effect of a final judgment is to determine finally a cause of action set up in the pleadings and pending for decision in the cause when that judgment is pronounced, unless, indeed, the court exclude it from the scope of its action; and this whether the judgment result from actual decision or oversight of the court. That which is adjudged is the decision of the court that it is all the parties are entitled to. In determining the effect of a judgment it sometimes is important to inquire whether or not the particular question or issue was tried and decided in the cause in which the judgment was rendered. That is true although * * * the cause of action is not the same in the second as that decided in the first action; it is claimed that a party to the second is estopped upon a question given to both which was decided in the first. Nichols v. Dibbrell, 61 Tex. 541; Hamrick v. Gurley, 93 Tex. 480, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330, and authorities cited. Such an inquiry is out of place where the cause of action is the same in the two causes and a final judgment on the merits has been rendered in the first. Of course, we do not hold that the defendant is bound to plead in reconvention his damages in such an action, or that, having done so, he he must prosecute his plea to final judgment. We may fully concede his right entirely to withhold such a claim and to await the termination *Page 699 of the cause, or, if he has filed a plea in reconvention, to withdraw or discontinue it before trial and in either case, after the termination of that litigation, to bring his independent action for damages sustained. But we cannot concede that he can go to trial and submit his cause for decision upon pleadings raising such an issue, and afterwards be heard to say that it was not involved in the final judgment merely because he introduced no evidence to sustain it and no mention was made of it. The absence of evidence constitutes the best of reasons for denying it; the failure to sustain it is a denial of it.
"In the case of Flippen et al. v. Dixon, 83 Tex. 421, 18 S.W. 803, 29 Am. St. Rep. 653, a writ of sequestration was sued out and levied, and the defendant claimed in reconvention the damages caused thereby. At the trial he adduced evidence in support of his claim, but the judgment made no reference to it in submitting the cause to the jury on special issues. Judgment was rendered in the defendant's favor which said nothing of his claim for damages, and another suit was then brought by him to recover them. This court held that he was precluded by the judgment. It will be seen that the only fact which could be urged to distinguish that case from this is that Dixon adduced evidence to support his claim, which Allen did not. That a mere failure to adduce evidence of a claim put in issue by pleadings cannot be urged to limit the effect of the judgment, if authority were needed for so plain a proposition, is settled by the decisions of this court. Fish v. Miller, 20 Tex. 582; Roberts v. Johnson,48 Tex. 137.
"The difference between a judgment in a case like this, where a right or claim is pleaded and in issue, when a judgment is rendered, and one in which, though existing, it is not set up and is separable from the cause of action which is pleaded, is illustrated by the decision in Roberts v. Johnson, supra, Flippen v. Dixon, supra, and Johnson v. Murphy,17 Tex. 216, the first class, and McAlpine v. Burnett, 19 Tex. 500, Ball v. Hill, 48 Tex. 634, Waldrom v. Zacharie, 54 Tex. 504, and Kempner v. Comer, 73 Tex. 201, 11 S.W. 194, the second class. The reason for this difference is that a judgment is logically to be taken as disposing of all the issues pending for decision under the pleadings in the cause, unless the court exclude some of them from the effect of the adjudication, an exception made by other decisions. Converse v. Davis,90 Tex. 462, 39 S.W. 277; Groesbeck v. Crow, 91 Tex. 74. 40 S.W. 1028: Teal v. Terrell, 48 Tex. 508; Williams v. Wiley, 96 Tex. 152, 71 S.W. 12. The trial court therefore erred in this case in refusing to instruct that the former judgment precluded a recovery by plaintiff herein of any damages which accrued prior to the time of its rendition."
Many authorities from other jurisdictions might be cited announcing the same doctrine, but the question seems to be so well settled in this state by our own decisions cited above and the following that I deem it unnecessary to further discuss the question or prolong the opinion by quoting from any of them. See Stockwell v. Melbern, 168 S.W. 405; Pitt v. Gilbert, 190 S.W. 1157; Crain et al. v. National Life Insurance Co.,56 Tex. Civ. App. 406, 120 S.W. 1098; Hanrick v. Hanrick (Sup.) 173 S.W. 211; Bomar v. Smith, 195 S.W. 965; Swan v. Price, 162 S.W. 994; Houston v. Gonzales Independent School District, 202 S.W. 963 (8). In McKenzie v. Withers (Sup.) 206 S.W. 503, Montgomery, P. J., of section B of the Commission of Appeals, in an able opinion, announced the same rule. It is true that in the same volume and on the same page the Supreme Court in that case disowns and declines to stand even as godfather to it or any of the offspring of the Commissions of Appeals, simply consenting that it shall live and be enrolled on the parish register. Believing, however, it to be a vigorous offshoot, with a striking family resemblance to Rosen-Trammell and Hermann-Allen, supra, I hereby adopt it, and will, as far as I can, thereby remove the bar sinister.
I think the judgment should be affirmed.