Taylor v. Harris

21 Tex. 438

Opinion

Roberts, J.

Defendant in error sought by scire facias to •revive a judgment against plaintiff in error, who pleaded her coverture at the time judgment was rendered, and that her husband did not consent to the arbitration upon the award in which the judgment was founded. The Court below held her plea insufficient.

In the case of Bullock v. Ballew, it is said that “ in an action on a judgment no defence can be admitted which existed prior to the judgment.” (9 Tex. R. 498.) This rule relates to such matters as would render the judgment defective or erroneous, or voidable, but not to such as would render the judg ment absolutely void. (Hopkins v. Howard, 12 Tex. R. 7 ; McFadden v. Lockhart, 7 Tex. R. 573.) Her act done under coverture may be voidable, and though her coverture would excuse her not having made her defence at the time the judgment was rendered, yet until such judgment is avoided, set aside, or annulled, by some proceeding, she cannot resist the enforcement of process upon such judgment. (North v. Howard, 5 Tex. R. 297.)

The object of this proceeding by scire facias, is to procure the process of execution. (Bullock v. Ballew, 9 Tex. R. 499,. 500.)

If it should be thought permissible to entertain a plea of this nature in this proceeding, it would have been incumbent on her to have stated, in the shape of a cross-action, all such facts as were necessary to show, affirmatively, that the judgment should not have been rendered against her. This she has not done. The facts stated by her, to-wit: her coverture, and the want of her husband’s consent, would, under some circumstances, be sufficient, under others not.

The exceptions to the plea were properly sustained.

Judgment is affirmed.

Judgment affirmed.