Milburn v. Smith

• Decision Date: 19 December 1895
• Parties: MILBURN et al. v. SMITH et al.
• Court: Texas Court of Appeals

33 S.W. 910

MILBURN et al. v. SMITH et al.

Court of Civil Appeals of Texas.

December 19, 1895.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Trespass to try title by J. E. Milburn and others against S. J. Smith and others. Judgment was rendered for defendants, and plaintiffs appeal. Affirmed.

Stewart, Stewart & Lockett, for appellants. Hutcheson, Campbell & Sears, for appellees.

WILLIAMS, J.

Appellants sued in trespass to try title to recover a tract of land in Harris county. The defendants (appellees) pleaded not guilty, and other defenses, which need not be particularized. Judgment was rendered for defendants, which is brought in review by this appeal.

Appellants are the heirs of J. O. Milburn deceased, and are conceded to have title, unless it was divested out of their ancestor by the proceedings under which appellees claim, and which are as follows: On August 8, 1887, S. A. Oliver instituted suit, in a justice's court of Harris county, against J. O. Milburn, to recover the sum of $42.20 as a balance due on account. At the same time he filed his affidavit to procure a citation for publication, which stated, as the ground for publication, that defendant's residence was unknown. A citation in due form was issued, and ordered to be published in some newspaper published in Harris county for four successive weeks prior to the return day thereof, which was the second Monday in September, 1887. The writ was caused by the constable to be so published, the dates of publication being August 10, 17, 24, and 31, 1887. The writ was properly returned, showing in proper manner the service thereof. This citation made no reference to an intended attachment. On the 2d day of September, 1887, plaintiff, Oliver, took out an attachment against J. O. Milburn, by making affidavit and giving bond as required by the statute, on the ground that the defendant was not a resident of this state. The writ was, on same day, levied upon the land in controversy as the property of Milburn, and due return was made of the writ showing that fact. At the next term thereafter of the court, held on the 12th day of September, 1887, an order was entered reciting that plaintiff appeared, but that defendant came not, although duly cited by publication, and that the case was continued by operation of law until the next term. It is not claimed that there was any defect or irregularity in any of these proceedings, except those hereafter treated, and hence a fuller statement of them is not given. On the 10th day of October, 1887, the court again met, appointed an attorney to represent the absent defendant, and heard the cause without other appearance for defendant, and rendered judgment that plaintiff recover of defendant, J. O. Milburn, the sum sued for, with interest and costs, for which execution is ordered. The judgment recites that defendant failed to appear, and also as follows: "And it appearing to the court that citation had been made by Constable W. W. Glass by ordering publication of said citation in the Houston Age, a newspaper published in Harris county, for four successive weeks prior to the return day of said citation, at the September term of this court, on August 10, 17, 24, and 31, 1887, and that said citation had been duly so published, and that the defendant came not and made no answer at said September term of court, and that said cause was at said term of court continued by operation of law, the court appointed Henry F. Fisher, Esq., to represent the absent defendant as counsel." It also recites the issuance and levy of the attachment upon the land, describing it, and that it is "in all things sustained," and orders that the "land attached be sold under execution." The land is mentioned in the return of the officer and in all the subsequent proceedings as the same conveyed by E. L. Burke to J. O. Milburn by deed recorded in Harris county in volume 30, p. 234, besides other description, which is not claimed to be defective. October 21, 1887, an ordinary execution was issued on this judgment for the collection of it out of the property of the defendant, making no mention of this land. Under this writ the land in controversy was regularly sold and bought by the person from whom defendants deraign title, and a deed was made to him by the officer. Milburn, during the whole of the time covered by these proceedings, was a citizen of another state. Appellants assert that the purchaser under these proceedings acquired no title because—First, the defendant was beyond the territorial jurisdiction of the court, and no jurisdiction over his person was obtained; second, no jurisdiction to subject the land was acquired, because the publication of notice was made before the levy of the attachment, and at a time when the court had no jurisdiction of any character; third, because the name of the defendant, as given, J. O. Milburn, was not stated with sufficient certainty; fourth, that if the judgment was valid, the sale under an execution, instead of an order of sale, was not a proper execution of it, and could not therefore divest the title.

It is not claimed by appellees that the judgment was valid as a personal judgment against Milburn, and it is clear that it was not. Pennoyer v. Neff, 95 U. S. 724. If the title of defendants is to be upheld, it must be on the ground that the judgment was one in rem, and that the court, by the proceeding taken, acquired jurisdiction over the property so as to authorize a judgment subjecting it to payment of the debt. It is well settled that "all property within a state is subject to the jurisdiction of its courts, and they have the right to adjudicate the title thereto, to enforce liens thereupon, and to subject it to the payment of the debts of its owners, whether residents or not." Freem. Judgm. § 120a; Pennoyer v. Neff, supra; Cooper v. Reynolds, 10 Wall. 308; Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586; Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557. The rules of procedure, through which the courts of a state are to exercise this power, are to be prescribed by the legislature of the state, subject to restrictions imposed by the constitution of the United States and that of the particular state. When the steps required by the laws of the state in order to invest the court with power to render such judgments as those above referred to have been taken, the jurisdiction attaches, unless something has been done which is prohibited, or something omitted which is required, by the fundamental law. The laws of a state cannot secure to its courts jurisdiction over the persons of citizens of other states by any process which they may authorize, because such laws do not operate, and such process does not run, beyond the limits of the state. But such laws may provide process by which property within the state may be brought within the control of its courts, and subjected to their judgments. Hence, the publication of a citation in a pending suit gives no power over the person of the defendant, if he be a nonresident; but it may, if authorized by the statute, constitute sufficient notice to authorize the court to pronounce judgment against property attached in the suit. Pennoyer v. Neff, supra; Stewart v. Anderson, 70 Tex. 596, 18 S. W. 295. In the case last cited it is said: "It is doubtless competent for the legislature, when personal service cannot be made within the state on a defendant, to declare what shall constitute notice to a nonresident debtor having property within the limits of the state sought to be subjected by a creditor to the payment of his debt." And when, in the same opinion, it is said that publication of notice is essential to the power of the court to render judgment subjecting attached property to the debt, it is so said because the statute required such publication. Some authorities hold that in such cases no notice, in addition to seizure of the property, is essential to this character of jurisdiction. Cooper v. Reynolds, supra; Paine v. Mooreland, 15 Ohio, 435; Wescott v. Archer, 12 Neb. 345, 11 N. W. 491, 577 (dissenting opinion). Others to the same effect might be cited. On the other hand, most authorities hold that, where the state statute requires publication, it is necessary in order to authorize judgment against the property seized, and is essential to the validity of the judgment rendered. Waples, Attachm. 272, 273, 324; Freem. Judgm. § 120a; Black, Judgm. § 220; Dorr v. Rohr, 82 Va. 359; Works, Courts & Jur. pp. 48-518; Wade, Attachm. § 45; Cooley, Const. Lim. 497, 498; Wescott v. Archer, supra (majority opinion); Walker v. Cottrell, 6 Baxt. 257. And some hold...