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imony contains objectionable parts, the whole party claiming and testifying that he was not of such offered testimony is inadmissible, served, and the issue of service or no service and, in order to introduce the admissible should be submitted to the jury for determina

tion. portions, it is the duty of the party offering the same to separate the good from the bad set aside judgment by default on notes alleged

"Where a party, in a bill of review seeking to and to offer the good alone. The whole of to have been executed by him, denies that he such testimony would not be admissible.

was served with citation or notice of said suit, Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275; and denies under oath the execution of said Cole v. Horton, 61 S. W. 503; Hill v. Taylor, notes by himself or by his authority, and gives 77 Tex. 295, 14 S. W. 366. Furthermore, we testimony in support of his sworn plea, the ismight say that the fact that his grown chil- sue of a meritorious defense to said original dren knew nothing about the service of the suit is raised, and such issue should be submitcitation on him is too remote and indefinite ted to the jury.” to prove as a fact that he was not served.

And also: What they knew, and not what they did not know, is what would tend to give support to

"Limitation will not begin to run against the the testimony of their father. We have ex- right of a party to file and prosecute a bill of amined the matter presented, and we are of review until he knew that à cause of action

existed." opinion that there was no error in the action of the court in this matter, and the assign

On the contrary, it is urged that two witment is therefore overruled.

nesses are required to set aside an officer's The second assignment of error complains return, or one witness corroborated by strong, that the trial court erred in giving to the clear, and satisfactory circumstances; and jury a peremptory instruction as follows:

that the witness S. McBride, who testified "You are charged that the evidence in this that he was not served with citation in the cause as a matter of law fails to show that year 1911, is not corroborated by strong, plaintiff is entitled to recover, and you are in- clear, and satisfactory circumstances by the structed to return a verdict for the defendant testimony of his adult children, who reside H. B. Kaulbach"

in the same community, to the effect that

they had a general knowledge of their fath--for the reason that the pleadings of the er's business, had read for him at times and parties and the testimony introduced and

were occasionally with him, and did not know offered to be introduced by the plaintiff in and had never heard of their father being this case raise issues of fact as to whether or served with citation, and that during said not the return made by the sheriff of Newton time their father was traveling over the county, Tex., by and through his deputy, T. country generally and attending to his own H. Hext, was true or not, and whether or not business and signing notes, etc.; and further Stephen McBride was actually served with that the trial court did not err in instructing citation and copy of petition, or either of the jury to return a verdict for the appellee, them, in case No. 8277, H. B. Kaulbach v. because, under the facts admitted and the E. F. Montgomery et al., Sixtieth judicial excluued testimony, had it been admitted, the district court, Beaumont, Tex.; and whether verdict is supported by an overwhelming preor not the said notes sued on by H. B. Kaul- ponderance of the testimony and no other bach in said cause No. 8277 were signed by verdict would be permitted to stand. Stephen McBride or by his authority; and

The officer's return of the citation shows whether or not the right of said Stephen Mc- that a copy of citation and a certified copy of Bride to pursue his remedy herein by bill of plaintiff's original petition was delivered to review is barred by the statutes of limita- S. McBride in Newton county on February tion; and said issues of fact should have 18, 1911, by T. H. Hext, Deputy Sheriff. T. been submitted to the jury for determina- H. Hext testified: tion. The propositions under this assignment as to whether I delivered said citation address

"I made this return and it speaks the truth. F. Montgomery, and W. C. Lenehan, S. Mc-| country attending to his own business and Bride.

ed to S. McBride to any other person except “Where it appears that the return on the himself, I answer that I did not. I delivered citation shows service on a defendant in a suit as stated in my return on the citation to S. and judgment by default was taken, but said McBride. I never made a return of a citation defendant testifies that he was never served and while I was serving as deputy sheriff of Newknew nothing about the suit or the transactions ton, Tex., stating that I had served a defendant covering the subject-matter of the suit, and in person with citation, when in truth and in where it further appears that the officer making fact I did not do so. the return lived for many years during his "The notary public taking my deposition has childhood near the defendant and has known shown me a letter dated March 22, 1911, writsaid defendant since said time, and yet such ten from Newton, Tex., as follows: officer does not remember to have ever served “ 'Mr. Geo. D. Anderson, Beaumont, Texas: said defendant with citation in the particular Yours of the 20th to hand and in reply will say, suit mentioned or in any other suit-such condi- we served those citations immediately after tions and facts constitute strong corroborative we received them, and send you our returns. circumstances supporting the testimony of the Got service on all three of the men named, E.


signing deeds, notes, etc. In the same com"Thanking you for past favors, we are munity with him resided his three grown

" 'Your friend, T. H. Hext, Deputy.' "I wrote this letter, and the facts stated in knowledge of their father's business, read

children, who testify that they had a general said letter are true. I signed the letter myself,"

papers for him at times, but they were only

occasionally with him, and that they did not (3] The authorities seem to be in support know of such service of citation and had of the proposition that two witnesses are re never heard of same. These are the only. quired to set aside an officer's return, or one circumstances offered, save and except the witness corroborated by strong, clear, and fact that the deputy sheriff, Hext, had no insatisfactory circumstances. Randall v. Col- dividual recollection of making the service. lins, 58 Tex. 231; Gatlin v. Dibrell, 74 Tex. Hext did testify that he made the return and 36, 11 S. W. 908; Swearingen v. Swearingen, wrote a letter within a few days after the 193 S. W. 442; Connell v. Galligher, 36 Neb. return, and that the facts stated in the re749, 55 N. W. 232; Matchett v. Liebig, 20 s. turn and the letter were true. D. 169, 105 N. W. 170; Godshalk v. Mar- In the case of Pierce-Fordyce Oil Co. v. tin, 200 S. W. 535. Our Supreme Court, in Staley, supra, a like question was under disthe case of Randall v. Collins, supra, said cussion, and the court says: that there should be two witnesses, or one "Homer Evans, the constable of Staley's prewitness with strong corroborating circum- cinct in Wilbarger county, though he had no stances, and in the case of Swearingen v. independent recollection of the fact of personal Swearingen, the Court of Civil Appeals said: service upon the defendant Staley, positively “The evidence must be clear and satisfactory; the return on the citation, and that, as con

testified that it was his official signature to also, that there should be two witnesses, or one stable, he personally served all papers. It is witness with strong corroborating evidence."

clearly deduced from his testimony that from

those facts he knew that he served the writ In the case of Pierce Fordyce Oil Co. v. and made the return thereupon; otherwise, Staley, 190 S. W. 814, there is a very clear his signature thereto would not have been in discussion of the proposition. The court existence. Without citing the authorities on says:

evidence, this is clearly original and probative "That part of the opinion, that evidence to testimony of the fact recited in the instrument." set aside a judgment must clearly and satisfactorily contradict the sheriff's return, seems

[4] Therefore, in our judgment, in order to be the general rule, without any opposing for negative testimony of this character to be authority that we are able to find, in other ju given any probative force, it is necessary, in risdictions.

connection therewith, to offer positive facts “The Supreme Court said, relative to the im- showing that had the service been made the peachment of the return of citation: ‘It is not witnesses would necessarily have known it, like an ordinary issue of fact, to be determined and in our judgment it is not sufficient that by a mere preponderance of testimony.' We ad- they might have known of it, or that they mit, of course, that the obligation of the rule would probably have known it. 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 ap

Collins, supra, used the following language: plication to a record except one of exclusion." “Leaving out of view the evidence corroborat

ing the return, we are of opinion that the eviFrom what has been quoted above, it will dence tending to show that Collins was not citbe seen that all of the authorities uniformly ed falls short of what the law requires in such support the proposition that a mere prepon. cases.

In effect that evidence amounts to this: derance of the testimony is insufficient to set That the officer by whom the service purports aside an officer's return, but the evidence to have been made-testifying twice, eight and

nine years after the transaction-at first could must be certain, clear, satisfactory, and con

not recollect any such service, and because he vincing, with no uncertainties and with no kept memoranda of his official acts, and had presumptions in support of same. It does not

none of this, and further because by agreement require that the proof be beyond a doubt, nei- with his principal (an agreement which he actther will uncertain and unsatisfactory cir- ed on) he was not to execute process in that cumstances raising a doubt or suspicion be part of the county, he did not believe that the sufficient to corroborate a witness who con- process was served by him. Subsequently, howtradicts the officer's return. The rule of law ever, his memory having been refreshed, he being as above stated, the facts in the in- changes his opinion, and admits having some stant case, after being inquired into, will recollection of serving some process on Collins.

“The sheriff testifies to the same agreement, show that the witness S. McBride, who is 83 and further that he required his deputies to reyears of age and blind and bedridden for port their official acts to him, and he kept a two years, testifies that seven years ago he record of all such acts in a book, but found no was not served with citation. At that time record of such service. To this it is to be addhe was active and was traveling over the ed 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 ofhe 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 Appeal from District Court. Van Zandt some doubt or suspicion on the question of serve

County ; J. R. Bond, Judge. ice, but they are circumstances insufficient to establish satisfactorily that Collins was not Bill of review by the Texas & Pacific Railserved.

way Company and others, seeking a revision “Even prudent men and officers are liable to and cancellation of a judgment rendered forgetfulness and negligence; and if the judg

against the Railway Company and in favor ments of our courts may be set aside, after hav

of R. L. Duff. Bill dismissed, and plaintiffs ing stood for years, on such evidence, there will indeed be no end to litigation, no certainty ar

appeal. Affirmed. rived at by an adjudication. This is a case F. H. Prendergast, of Marshall, and J. A. where the jury have erred in matter of law,

Germany, of Wichita Falls, for appellants. and, notwithstanding this is the third verdict,

Wynne, Wynne & Gilmore, of Wills Point, we think that the judgment should be reversed and remanded."

for appellee. We are of opinion that the case of Kemp- TALBOT, J. The appellee, R. L Duff, on ner v. Jordan, 7 Tex. Civ. App. 275, 26 S. W. February 26, 1916, brought suit in the dis870, does not support appellant's proposition. trict court of Van Zandt county against the The assignment is overruled, and, after a

appellant the Texas & Pacific Railway ComCareful examination of the record, we are pany, to recover damages for personal inof opinion that the case has been correctly juries received as a result of the negligence tried, and that the court committed no error,

of the appellant. This suit was numbered and therefore the judgment of the court be.

3689, and the pleadings and proof of the aplow is in all things affirmed.

pellee therein showed that he was standing near the appellant railroad track at a public crossing when a freight train of appellant passed, and that a lump of coal fell or was

thrown from the tender of the engine draw. TEXAS & P. RY. CO. et al. v. DUFF.

ing the train, struck him on or near the (No. 8125.)

shoulder, knocked him down, and dislocated (Court of Civil Appeals of Texas. Dallas. Dec.

his hip and otherwise injured him. The ap7, 1918. Rehearing Denied Jan. 11, pellant railway company pleaded, among oth1919.)

er things not necessary to state, the general

issue, and specially, in substance and effect, 1. JUDGMENT CW443(1)-EQUITABLE RELIER

that appellee's injuries were feigned and his POWER OF COURT.

suit for damages fraudulent. The case was District courts may grant relief against a

tried, and on August 10, 1916, a jury verjudgment by re-examining the case on its merits, when it appears that the judgment has been

dict in favor of appellee, Duff, for the sum of obtained by fraud, mistake, or accident without $5,000 was rendered, and judgment thereany want of diligence on the part of the person upon duly entered. Later this judgment, against whom rendered.

according to the pleadings of the appellants, 2. JUDGMENT 335(3), 956(5),BILL OF RE was affirmed on appeal (195 S. W. 1169) and VIEW-GROUNDS FOR RELIEF-EVIDENCE.

writ of error denied by the Supreme Court. In bill of review, seeking a revision and

On March 2, 1918, the appellant herein the cancellation of a judgment for personal inju

Texas & Pacific Railway Company, joined ries held that issues presented had been decided by R. H. Stewart and J. Dabney Day, surein suit for damages.

ties on the supersedeas bond, given by said 3. NEW TRIAL 104(1)-NEWLY DISCOVER railway company in its appeal from the ED EVIDENCE.

judgment rendered on said cause No. 3689, New trials are not to be pəzub.1% upon newly

and J. L. Lancaster and Pearl Wright, as rediscovered evidence which is merely cumulative.ceivers of appellant railway company, filed in

the district court of Van Zandt county a bill 4. JUDGMENT 335(2)-BILL OF REVIEWCUMULATIVE EVIDENCE.

of review, seeking a revision and cancellation The principle that new trial will not be

of the judgment rendered in said cause No. granted upon newly discovered evidence which / 3689, and an injunction restraining the en. is merely cumulative applies to a bill of review, forcement and collection of said judgment. seeking a review and cancellation of judgment This relief was asked upon allegations charg. after term time.

ing, in substance, that appellee, Duff, alleged, 5. JUDGMENT Om514-COLLATERAL ATTACK

in his suit No. 3689 for damages, that prior FRAUD.

to the accident resulting in the injuries of A judgment cannot be questioned for fraud / which he complained he had been a strong, in its procurement in an independent suit be- able-bodied man, capable of doing any kind

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of work, but that since the accident, on ac- ( said suit for damages, appellant proceeded count of injuries to his hip and other in- | to make investigation into the truth of the juries received at that time he was a con- | testimony of appellee, "of which it had no firmed cripple; that upon the trial of said information prior to the trial, and none at cause appellee procured and introduced false the trial, save and except logical inferencevidence to prove the allegations of his pe- es," by employing one E. A. Long to learn, tition, and testified falsely himself as to the if possible, the truth, to the end that it proextent of his injuries and as to the previous cure justice; that said Long did procure incondition of his hip; that he testified that formation which confirmed appellant's belief he had never suffered a dislocation of his that the said testimony of appellee was false hip prior to the time of the accident in ques- and fraudulent; that thereafter it employed tion; that he never had any trouble with his one Hiram Apel to make further and a more hip or back before that time; that while he thorough investigation, and that he procured could, at the date of the trial, walk without the affidavits of numerous persons to the efhis crutch and the brace on his hip "some fect that appellee Duff had, on many occapiece" without falling, provided he walked sions, exhibited his ability to dislocate the "right straight and easy" and did not put hip charged to have been jured in the actoo much weight on his leg, yet "if he made cident in question with scarcely any effort any kind of a turn he would go down"; that and wholly without pain. the gravamen of appellee's "cause of action Upon the presentation of appellant's bill was an initial dislocation of the hip of which and application Hon. Joel R. Bond, judge of he complained, and that the effect of his Eighty-Sixth judicial district of Texas, in testimony and all thereof was that prior to vacation, granted and directed the issuance the injury his hip was sound, and that he of the injunction prayed for upon applicants never suffered any inconvenience therefrom, giving bond in the sum of $12,000, payable or a dislocation thereof prior to the acci- and conditioned as required by law. On dent”; that all of the testimony given by April 4, 1918, appellee, Duff, filed a motion appellee himself and introduced at his in- to dissolve the injunction granted, and praystance was in support of that theory and ed that appellant's bill be dismissed. contention ; that appellant has reason to and hearing in chambers appellee's motion and

On does believe, and avers the fact to be, that said “testimony was perjured and false"; prayer were granted, the injunction dissolvthat appellee knew at the time it was given ed, and the bill dismissed. From this action that it was false, and that it was given for of the court this appeal is prosecuted. the fraudulent purpose of deceiving the

The appellants contend : (1) That “the court and jury to the end that appellee court erred in dissolving the injunction bemight procure a false and fraudulent verdict cause the allegations in the bill and exhibits from the jury against appellant; that in showed a fraud had been committed and the truth and in fact there was no initial dislo- injury would be irreparable"; (2) that "the cation of the hip as the result of the acci- court erred in dismissing the bill and not dent alleged to have occurred, but that said continuing the same over for hearing on its hip was unnatural, and had been for a num

merits." To these contentions appellee reber of years at least, and probably during plies: (1) That the issues presented in apappellee's entire life, to the extent that he pellant's bill of review, whether or not apcould at will throw the same out of place or pellee was a contortionist and could, before joint and replace the same without pain or

the accident and trial of the original suit, inconvenience. The appellants further allege throw the alleged injured hip out of joint in their bill of review the investigation and and replace it at will, and that he had falseefforts made before the trial of appellee's ly testified that he had not suffered a dislosuit for damages to obtain information as to cation of said hip prior to the accident comthe cause of the accident complained of, the plained of, were, upon pleadings and eviresult thereof, and of appellee's physical con- dence raising those issues, tried and deterdition prior thereto. It is then alleged that mined against appellant on the trial of said appellant was wholly unable to learn any suit, and could not be raised and opened up fact upon which to base the conclusion that on alleged newly discovered evidence, esappellee had, prior to the injury complained pecially when such evidence would be mereof in said damage suit, any trouble with his ly cumulative; (2) that because of appellants' hip, or that the same was abnormal in any negligence in failing to discover the alleged respect, and that appellants had no knowl. newly discovered evidence before the trial edge at the time of the trial of any fact of the original suit for damages or in time to leading to that conclusion, but that, on the present in the district court, during the term contrary, all the information procured was to at which the judgment now sought to be set the effect that prior to the alleged accident aside was rendered, a motion for a appellee's hip was normal, and had never trial based upon such evidence, appellants then been out of place. It is further alleged cannot maintain this proceeding, and therethat immediately after the trial of appellee's fore 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.

of coal which fell from the railway com[1] The law is well settled in this state pany's train his shoulder and breast were "that the district courts in the exercise of injured and his hip dislocated; that when their equitable powers may grant, by re-ex. he was knocked down his hip struck a piece aluining the case on its merits, such relief of coal lying on the ground ; that he discoras equity and justice may demand when it ered the dislocation of his hip and reduced is made to appear that a judgment has been it by manipulation and pressure with his obtained by fraud, mistake, or accident hands; that the accident occurred about i without any want of diligence on the part of or 8 o'clock in the evening, and that after the person against whom rendered.” This he replaced his hip he started home, distant general rule does not seem to be denied by about six miles, in company with his fatherthe appellee, but, as indicated, he contends, in-law and brother-in-law, reaching there a in effect, that the pleadings, evidence, and little before daylight; that on his way home charge of the court in the original suit for his hip came out of joint and was replaced damages show that the issue raised in ap- 16 or 18 times in walking the first four miles, pellant's bill of review was presented and and that he thought it came out of joint 16 decided in said original suit, and that appel- times while walking the last two miles of the lants, because of their lack of proper dili- distance. The foregoing testimony of the gence, are not entitled to relief in equity. appellee, Duff, as to his being struck by a

[2] We have arrived at the conclusion that lump of coal falling from the railway comthe court did not err in dissolving the in- pany's train and resulting in the dislocation junction and dismissing the bill. In reach- of his hip is corroborated by the testimony ing this conclusion we have not been unmind- of J. L. Phillips, appellee's father-in-law, ful of the fact that the rule, which denies and in some degree by his brother-in-law. to a party the right to relitigate a matter There was also testimony offered in the trial once in controversy and decided by a court of the original damage suit to the effect that having jurisdiction, assumes that there has appellee, Duff, prior to being struck by the been a trial in which the respective parties lump of coal which fell from the railway have had an opportunity to fully present company's train, was a strong healthy man, their claims, and that it was said in McMur- capable of doing hard work, and had never ray v. McMurray, 67 Tex. 665, 4 S. W. 357, complained of anything being the matter that the rule ought not to be given applica- with his hip joint. tion 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 bim 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 tes. ed 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 hare 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 man

or 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 elongat. ties 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 testi- that if a man has a hip joint of that kind he mony and the testimony of other witnesses. could not bear any weight on it; that the

In relating the nature of his injuries and hip joint is the most important joint and the consequences thereof appellee testified strongest in the human body.

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