On Motion for Rehearing.
In a courteous, though vigorous and forceful, motion for rehearing appellants complain that we failed to pass upon their fifth assignment of error. This assignment is as follows: “The court erred in sustaining the general demurrer and special exceptions because under defendants plea of not guilty plaintiffs were entitled to introduce evidence in rebuttal of defendants claim of a collateral attack on the judgment but said order denies them the right to show from the judgment roll that the judgment in question was not rendered, filed nor entered during the term at which the case was heard and is therefore void.”
The assignment is briefed under proposition No. 7.
The statement under the proposition asserts that M. C. Gann was called as a witness for the trial on April 15, 1935; that this was during the March term of court; that the judgment was entered on the 6th day of May, 1935, during the May term; that all parties rested during the March term, and by agreement the cause was carried over to the May term for adjudication; that the judgment was rendered on the 6th day of May, 1935; that the May term was not extended to complete the trial of the cause.
In verification of the above statement reference is made to Transcript, pages 21 to 22, and 29 to 34. Pages 21 to 22 are a reference to the trial petition of plaintiffs, and in such petition there appears no allegation that the case was tried other than at the May term, as the judgment recites. Referring again to the reference to the Transcript, pages 29 to 34, this is a judgment which is attached to plaintiffs’ petition as an exhibit, and by reference incorporated therein. This judgment does not show that the case was tried at the March term, but shows conclusively that the trial was at the May term. Nowhere in the petition is any agreement averred as to carrying the case over from the March term to the May term. These recitals are, we think, as conclusive on collateral attack as are the recitals as to jurisdiction over the person.
The assignment is overruled.
To advert briefly for the second time as to why we think this petition was subject to general demurrer, had plaintiffs’ allegations been confined to the statements that they had not been served with citation, had not appeared or authorized anyone.to appear for them, under such allegations, we think the judgment would have been prima facie void. Plaintiffs’ petition went further than this, it set forth the judgment assailed. - This judgment shows plaintiffs did appear. In this fact, we think, lies the distinction between the instant case and the case of Bender v. Damon, cited in the original opinion. It does not there appear what the recitals in the judgment assailed were. There is the same distinction as to the case of Graham v. East Texas Land & Improvement Co., Tex.Civ.App., 50 S.W. 579.
We believe there is no conflict between that case and our holding here. Here, plaintiffs’ petition shows the recitals in the judgment assailed; there, it did not.
The motion for rehearing is overruled.