nony contains objectionable parts, the whole of such offered testimony is inadmissible, and, in order to introduce the admissible portions, it is the duty of the party offering the same to separate the good from the bad and to offer the good alone. The whole of such testimony would not be admissible. Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275; Cole v. Horton, 61 S. W. 503; Hill v. Taylor, 77 Tex. 295, 14 S. W. 366. Furthermore, we might say that the fact that his grown children knew nothing about the service of the citation on him is too remote and indefinite to prove as a fact that he was not served. What they knew, and not what they did not know, is what would tend to give support to the testimony of their father. We have examined the matter presented, and we are of opinion that there was no error in the action of the court in this matter, and the assignment is therefore overruled.

The second assignment of error complains that the trial court erred in giving to the jury a peremptory instruction as follows:

"You are charged that the evidence in this cause as a matter of law fails to show that plaintiff is entitled to recover, and you are instructed to return a verdict for the defendant H. B. Kaulbach"

-for the reason that the pleadings of the parties and the testimony introduced and offered to be introduced by the plaintiff in this case raise issues of fact as to whether or not the return made by the sheriff of Newton county, Tex., by and through his deputy, T. H. Hext, was true or not, and whether or not Stephen McBride was actually served with citation and copy of petition, or either of them, in case No. 8277, H. B. Kaulbach V. E. F. Montgomery et al., Sixtieth judicial district court, Beaumont, Tex.; and whether or not the said notes sued on by H. B. Kaulbach in said cause No. 8277 were signed by Stephen McBride or by his authority; and whether or not the right of said Stephen McBride to pursue his remedy herein by bill of review is barred by the statutes of limitation; and said issues of fact should have been submitted to the jury for determination.

party claiming and testifying that he was not served, and the issue of service or no service should be submitted to the jury for determination.

"Where a party, in a bill of review seeking to set aside judgment by default on notes alleged to have been executed by him, denies that he was served with citation or notice of said suit, and denies under oath the execution of said notes by himself or by his authority, and gives testimony in support of his sworn plea, the issue of a meritorious defense to said original suit is raised, and such issue should be submitted to the jury."

And also:

"Limitation will not begin to run against the right of a party to file and prosecute a bill of review until he knew that a cause of action existed."

On the contrary, it is urged that two witnesses are required to set aside an officer's return, or one witness corroborated by strong, clear, and satisfactory circumstances; and that the witness S. McBride, who testified that he was not served with citation in the year 1911, is not corroborated by strong, clear, and satisfactory circumstances by the testimony of his adult children, who reside in the same community, to the effect that they had a general knowledge of their father's business, had read for him at times and were occasionally with him, and did not know and had never heard of their father being served with citation, and that during said time their father was traveling over the country generally and attending to his own business and signing notes, etc.; and further that the trial court did not err in instructing the jury to return a verdict for the appellee, because, under the facts admitted and the excluued testimony, had it been admitted, the verdict is supported by an overwhelming preponderance of the testimony and no other verdict would be permitted to stand.

The officer's return of the citation shows that a copy of citation and a certified copy of plaintiff's original petition was delivered to S. McBride in Newton county on February 18, 1911, by T. H. Hext, Deputy Sheriff. T. H. Hext testified:

The propositions under this assignment As to whether I delivered said citation address"I made this return and it speaks the truth.

are:

"Where it appears that the return on the citation shows service on a defendant in a suit and judgment by default was taken, but said defendant testifies that he was never served and knew nothing about the suit or the transactions covering the subject-matter of the suit, and where it further appears that the officer making the return lived for many years during his childhood near the defendant and has known said defendant since said time, and yet such officer does not remember to have ever served said defendant with citation in the particular suit mentioned or in any other suit-such conditions and facts constitute strong corroborative circumstances supporting the testimony of the

ed to S. McBride to any other person except himself, I answer that I did not. I delivered as stated in my return on the citation to S. McBride. I never made a return of a citation while I was serving as deputy sheriff of Newton, Tex., stating that I had served a defendant in person with citation, when in truth and in fact I did not do so.

"The notary public taking my deposition has shown me a letter dated March 22, 1911, written from Newton, Tex., as follows:

"Mr. Geo. D. Anderson, Beaumont, Texas: Yours of the 20th to hand and in reply will say, we served those citations immediately after we received them, and send you our returns. Got service on all three of the men named, E.

F. Montgomery, and W. C. Lenehan, S. Mc- country attending to his own business and Bride. signing deeds, notes, etc. In the same community with him resided his three grown

"Thanking you for past favors, we are
"'Your friend, T. H. Hext, Deputy.'

"I wrote this letter, and the facts stated in children, who testify that they had a general

said letter are true. I signed the letter myself."

[3] The authorities seem to be in support of the proposition that two witnesses are required to set aside an officer's return, or one witness corroborated by strong, clear, and satisfactory circumstances. Randall v. Collins, 58 Tex. 231; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Swearingen v. Swearingen, 193 S. W. 442; Connell v. Galligher, 36 Neb. 749, 55 N. W. 232; Matchett v. Liebig, 20 S. D. 169, 105 N. W. 170; Godshalk v. Martin, 200 S. W. 535. Our Supreme Court, in the case of Randall v. Collins, supra, said that there should be two witnesses, or one witness with strong corroborating circumstances, and in the case of Swearingen v. Swearingen, the Court of Civil Appeals said: “The evidence must be clear and satisfactory; also, that there should be two witnesses, or one witness with strong corroborating evidence."

In the case of Pierce-Fordyce Oil Co. V. Staley, 190 S. W. 814, there is a very clear discussion of the proposition. The court says:

"That part of the opinion, that evidence to set aside a judgment must clearly and satisfactorily contradict the sheriff's return, seems to be the general rule, without any opposing authority that we are able to find, in other jurisdictions. *

knowledge of their father's business, read papers for him at times, but they were only occasionally with him, and that they did not know of such service of citation and had never heard of same. These are the only circumstances offered, save and except the fact that the deputy sheriff, Hext, had no individual recollection of making the service. Hext did testify that he made the return and wrote a letter within a few days after the return, and that the facts stated in the return and the letter were true.

In the case of Pierce-Fordyce Oil Co. v. Staley, supra, a like question was under discussion, and the court says:

"Homer Evans, the constable of Staley's precinct in Wilbarger county, though he had no independent recollection of the fact of personal service upon the defendant Staley, positively testified that it was his official signature to the return on the citation, and that, as constable, he personally served all papers. It is clearly deduced from his testimony that from those facts he knew that he served the writ and made the return thereupon; otherwise, his signature thereto would not have been in existence. Without citing the authorities on evidence, this is clearly original and probative testimony of the fact recited in the instrument."

[4] Therefore, in our judgment, in order for negative testimony of this character to be given any probative force, it is necessary, in connection therewith, to offer positive facts showing that had the service been made the witnesses would necessarily have known it, and in our judgment it is not sufficient that they might have known of it, or that they would probably have known it.

"The Supreme Court said, relative to the impeachment of the return of citation: 'It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony.' We admit, of course, that the obligation of the rule would not require uncontradicted proof, and, The Supreme Court, Judge Gould deliver. necessarily, it is hard to determine and enunciate just what quantum of proof would meeting the opinion, in the case of Randall v. the rule so as to demonstrate an equitable application to a record except one of exclusion."

From what has been quoted above, it will be seen that all of the authorities uniformly support the proposition that a mere preponderance of the testimony is insufficient to set aside an officer's return, but the evidence must be certain, clear, satisfactory, and convincing, with no uncertainties and with no presumptions in support of same. It does not require that the proof be beyond a doubt, neither will uncertain and unsatisfactory circumstances raising a doubt or suspicion be sufficient to corroborate a witness who contradicts the officer's return. The rule of law being as above stated, the facts in the instant case, after being inquired into, will show that the witness S. McBride, who is 83 years of age and blind and bedridden for two years, testifies that seven years ago he was not served with citation. At that time he was active and was traveling over the

Collins, supra, used the following language:

"Leaving out of view the evidence corroborating the return, we are of opinion that the evidence tending to show that Collins was not cited falls short of what the law requires in such

cases.

In effect that evidence amounts to this: That the officer by whom the service purports to have been made-testifying twice, eight and nine years after the transaction-at first could not recollect any such service, and because he kept memoranda of his official acts, and had none of this, and further because by agreement with his principal (an agreement which he acted on) he was not to execute process in that part of the county, he did not believe that the process was served by him. Subsequently, however, his memory having been refreshed, he changes his opinion, and admits having some recollection of serving some process on Collins. "The sheriff testifies to the same agreement, and further that he required his deputies to report their official acts to him, and he kept a record of all such acts in a book, but found no record of such service. To this it is to be added that Collins was a man of prudence and

good business knowledge and habits, one likely | tween the same parties, when the judgment was
to know and avail himself of the defense that entered after due notice and upon evidence of-
he had not been sued in time to bind him as fered pro and con.
indorser. Beyond this there is nothing else.
These are circumstances which might throw
some doubt or suspicion on the question of serv
ice, but they are circumstances insufficient to
establish satisfactorily that Collins was not
served.

3. NEW TRIAL 104 (1)—NEWLY DISCOVER- railway company in its appeal from the ED EVIDENCE.

judgment rendered on said cause No. 3689,
and J. L. Lancaster and Pearl Wright, as re-
ceivers of appellant railway company, filed in
the district court of Van Zandt county a bill
of review, seeking a revision and cancellation
of the judgment rendered in said cause No.
3689, and an injunction restraining the en-
forcement and collection of said judgment.
This relief was asked upon allegations charg-
ing, in substance, that appellee, Duff, alleged,

5. JUDGMENT 514-COLLATERAL ATTACK-in his suit No. 3689 for damages, that prior FRAUD.

to the accident resulting in the injuries of
which he complained he had been a strong,
able-bodied man, capable of doing any kind

A judgment cannot be questioned for fraud
in its procurement in an independent suit be-
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to make investigation into the truth of the testimony of appellee, "of which it had no information prior to the trial, and none at the trial, save and except logical inferences," by employing one E. A. Long to learn, if possible, the truth, to the end that it procure justice; that said Long did procure information which confirmed appellant's belief that the said testimony of appellee was false and fraudulent; that thereafter it employed one Hiram Apel to make further and a more thorough investigation, and that he procured the affidavits of numerous persons to the effect that appellee Duff had, on many occasions, exhibited his ability to dislocate the hip charged to have been injured in the accident in question with scarcely any effort and wholly without pain.

of work, but that since the accident, on ac- [ said suit for damages, appellant proceeded count of injuries to his hip and other injuries received at that time he was a confirmed cripple; that upon the trial of said cause appellee procured and introduced false evidence to prove the allegations of his petition, and testified falsely himself as to the extent of his injuries and as to the previous condition of his hip; that he testified that he had never suffered a dislocation of his hip prior to the time of the accident in question; that he never had any trouble with his hip or back before that time; that while he could, at the date of the trial, walk without his crutch and the brace on his hip "some piece" without falling, provided he walked "right straight and easy" and did not put too much weight on his leg, yet "if he made any kind of a turn he would go down"; that the gravamen of appellee's "cause of action was an initial dislocation of the hip of which he complained, and that the effect of his testimony and all thereof was that prior to the injury his hip was sound, and that he never suffered any inconvenience therefrom, or a dislocation thereof prior to the accident"; that all of the testimony given by appellee himself and introduced at his instance was in support of that theory and

contention; that appellant has reason to and

does believe, and avers the fact to be, that said "testimony was perjured and false"; that appellee knew at the time it was given that it was false, and that it was given for the fraudulent purpose of deceiving the court and jury to the end that appellee might procure a false and fraudulent verdict from the jury against appellant; that in truth and in fact there was no initial dislocation of the hip as the result of the accident alleged to have occurred, but that said hip was unnatural, and had been for a number of years at least, and probably during appellee's entire life, to the extent that he could at will throw the same out of place or joint and replace the same without pain or inconvenience. The appellants further allege in their bill of review the investigation and efforts made before the trial of appellee's suit for damages to obtain information as to the cause of the accident complained of, the result thereof, and of appellee's physical condition prior thereto. It is then alleged that appellant was wholly unable to learn any fact upon which to base the conclusion that appellee had, prior to the injury complained of in said damage suit, any trouble with his hip, or that the same was abnormal in any respect, and that appellants had no knowledge at the time of the trial of any fact leading to that conclusion, but that, on the contrary, all the information procured was to the effect that prior to the alleged accident appellee's hip was normal, and had never then been out of place. It is further alleged that immediately after the trial of appellee's

On

Upon the presentation of appellant's bill and application Hon. Joel R. Bond, judge of Eighty-Sixth judicial district of Texas, in vacation, granted and directed the issuance of the injunction prayed for upon applicants giving bond in the sum of $12,000, payable and conditioned as required by law. April 4, 1918, appellee, Duff, filed a motion to dissolve the injunction granted, and prayed that appellant's bill be dismissed. hearing in chambers appellee's motion and prayer were granted, the injunction dissolved, and the bill dismissed. From this action of the court this appeal is prosecuted.

On

The appellants contend: (1) That "the court erred in dissolving the injunction because the allegations in the bill and exhibits showed a fraud had been committed and the injury would be irreparable"; (2) that "the court erred in dismissing the bill and not continuing the same over for hearing on its merits." To these contentions appellee replies: (1) That the issues presented in appellant's bill of review, whether or not appellee was a contortionist and could, before the accident and trial of the original suit, throw the alleged injured hip out of joint and replace it at will, and that he had falsely testified that he had not suffered a dislocation of said hip prior to the accident complained of, were, upon pleadings and evidence raising those issues, tried and determined against appellant on the trial of said suit, and could not be raised and opened up on alleged newly discovered evidence, especially when such evidence would be merely cumulative; (2) that because of appellants' negligence in failing to discover the alleged newly discovered evidence before the trial of the original suit for damages or in time to present in the district court, during the term at which the judgment now sought to be set aside was rendered, a motion for a new trial based upon such evidence, appellants cannot maintain this proceeding, and therefore the court did not err in dissolving the

temporary injunction and dismissing the bill that as a result of being struck by the lump of review.

[1] The law is well settled in this state "that the district courts in the exercise of their equitable powers may grant, by re-examining the case on its merits, such relief as equity and justice may demand when it is made to appear that a judgment has been obtained by fraud, mistake, or accident without any want of diligence on the part of the person against whom rendered." This general rule does not seem to be denied by the appellee, but, as indicated, he contends, in effect, that the pleadings, evidence, and charge of the court in the original suit for damages show that the issue raised in appellant's bill of review was presented and decided in said original suit, and that appellants, because of their lack of proper diligence, are not entitled to relief in equity.

of coal which fell from the railway company's train his shoulder and breast were injured and his hip dislocated; that when he was knocked down his hip struck a piece of coal lying on the ground; that he discov ered the dislocation of his hip and reduced it by manipulation and pressure with his hands; that the accident occurred about 7 or 8 o'clock in the evening, and that after he replaced his hip he started home, distant about six miles, in company with his fatherin-law and brother-in-law, reaching there a little before daylight; that on his way home his hip came out of joint and was replaced 16 or 18 times in walking the first four miles, and that he thought it came out of joint 16 times while walking the last two miles of the distance. The foregoing testimony of the appellee, Duff, as to his being struck by a lump of coal falling from the railway company's train and resulting in the dislocation of his hip is corroborated by the testimony of J. L. Phillips, appellee's father-in-law, and in some degree by his brother-in-law. There was also testimony offered in the trial of the original damage suit to the effect that appellee, Duff, prior to being struck by the lump of coal which fell from the railway company's train, was a strong healthy man, capable of doing hard work, and had never complained of anything being the matter with his hip joint.

[2] We have arrived at the conclusion that the court did not err in dissolving the injunction and dismissing the bill. In reaching this conclusion we have not been unmindful of the fact that the rule, which denies to a party the right to relitigate a matter once in controversy and decided by a court having jurisdiction, assumes that there has been a trial in which the respective parties have had an opportunity to fully present their claims, and that it was said in McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357, that the rule ought not to be given application when it is clearly made to appear that The railway company, in the trial of the one party has, by his own false evidence, said original suit for damages, offered testiknowingly given, or by the evidence of oth- mony to show that appellee was not struck ers by him introduced and known to be false, by a lump of coal hurled from its train, or, obtained a judgment against his adversary if he was, that his hip was not dislocated which gives to him something which truth thereby, and that, if injured at all, the inand justice would deny. That the issue rais- jury was very slight. It also called several ed in appellant's bill of review was present- physicians as expert witnesses, whose tesed and decided in appellee's suit for dam- timony was to the effect that, if appellee sufages is, we think, manifest. Appellee's claim fered an initial dislocation of the hip joint for damages, as set forth in his petition in as a result of the lump of coal striking him, the original damage suit, was based upon it was practically impossible for him to have the alleged fact that through the negligence replaced or reduced it as he said he did. In of the appellant the Texas & Pacific Rail- this connection Drs. Brandon, Cosby, and way Company a lump of coal fell from one Cox testified, in substance, that there is a of its passing trains and struck appellee condition of the hip joint that is called a while he was standing near the railroad hereditary dislocation, that is, a condition track at a public crossing; that the blow which, perhaps, comes from birth, where the knocked him down, causing his hip to strike joint is not properly developed and the ligaa piece of coal lying on the ground, dislo- ments are not properly developed or are cating the hip and otherwise injuring him. elongated, producing what is called an haAmong other defenses the appellant railway bitual dislocation or partial dislocation, in company pleaded, in effect, that appellee was which condition a man can put his joints in not struck and his hip dislocated in the manor out at will; that it is common to find peoner alleged by him, and that his alleged in-ple who can dislocate various joints in the juries were feigned, and his suit brought for body at will; that if a man can throw the the purpose of defrauding the railway com- hip joint out at will the main ligament that pany. Upon the issue thus drawn the par- holds it in place necessarily must be elongatties went to trial, and the allegations of ap-ed so it will stretch, and that it is not true pellee's petition sustained by his own testimony and the testimony of other witnesses. In relating the nature of his injuries and the consequences thereof appellee testified

that if a man has a hip joint of that kind he could not bear any weight on it; that the hip joint is the most important joint and strongest in the human body.