On Motion of Defendant in Error for Rehearing.
The statement in the opinion disposing of the writ of error that the judgment on which the writ of garnishment was issued September 30, 1930, was by default, is challenged as incorrect, and attention is called to the recital in that judgment that “the defendant appeared by attorney and announced ready for trial,” etc. The facts with reference to the matter, as conclusively appears from testimony in the statement of facts sent to this court, were that the citation served on plaintiff in error in the suit resulting in the judgment on which said writ of garnishment was issued required her to appear and answer the suit on November 7, 1927; that she appeared in court on that day, and was informed that judgment in the suit had been rendered, against her in September, 1927; that afterward the attention of defendant in error’s attorneys was called to the fact that said judgment rendered in September, 1927, was prematurely taken, when service of the citation on plaintiff in error was incomplete, and therefore that the judgment was void; that thereafter, in the language of one of defendant in error’s attorneys testifying as a witness, he “had the court to erase the date of the original entry of the judgment and substitute the date November 8th, 1927, which now appears on the docket of the court.” When the change was made, and whether in open court and during a term thereof, does not appear, except that said attorney testified it was “in November, 1927.” It was on the facts stated, and testimony of the attorney just set out, that this court said it appeared the judgment defendant in error sued upon was by default. We are still of that opinion, and do not agree with defendant in error in his contention in the motion that, because the judgment on its face did not appear to be by default, plaintiff in error should not be heard in this suit to say it was by default. This suit was on the judgment, and plaintiff in error’s attack thereon was a direct attack and not a collateral one, as asserted by defendant in error.
And we think said judgment was void for another reason also, to wit: It appeared on the face of defendant in error’s petition in the suit resulting in the judgment that plaintiff in error was a married woman at the time she executed the notes sued upon, and it did not appear from any allegations in said petition that the indebtedness evidenced by the notes was on account of “necessaries” furnished to plaintiff in error or her family, or was incurred for the benefit of her separate estate. It is held that such a petition will not support a judgment by default against a mar: ried woman. Graham v. Carmany (Tex. Civ. App.) 2 S.W.(2d) 467; Hoffman v. Tool Co. (Tex. Civ. App.) 251 S. W. 823; Beshears v. Talbot (Tex. Civ. App.) 241 S. W. 635; Poe v. *440Hall (Tex. Civ. App.) 241 S. W. 708; Fisk v. Warren (Tex. Civ. App.) 248 S. W. 406.
The judgment purporting to have been rendered November 8,1930, being void, suit could not be maintained on it, and hence the judgments rendered December 10, 1930, were unauthorized and void. Defendant in error’s remedy was not a suit on said judgment of November 8, 1930, but was on the notes that judgment was based on. The motion is overruled.