Alston v. Emmerson

• Decision Date: 05 February 1892
• Citation: Alston v. Emmerson, 18 S.W. 566, 83 Tex. 231 (Tex. 1892)
• Court: Texas Supreme Court
• Parties: ALSTON <I>et al.</I> v. EMMERSON.

18 S.W. 566

ALSTON et al. v.EMMERSON.

Supreme Court of Texas.

February 5, 1892.

Appeal from district court, Dallas county.

Action of trespass to try title to land by Thomas Alston and Richard Alston against S. P. Emmerson. Judgment for defendant. Plaintiffsappeal. Affirmed.

C. F. Clint and Word & Reeves, for appellants.Cobb & Avery, for appellee.

STAYTON, C.J.

This action was brought by appellee to recover lands which once belonged to John D. Alston, and the rights of the parties depend on the validity of a judgment through which the lands were partitioned among his heirs.The original decree directing partition was entered on April 29, 1878, by the district court for Dallas county, and the report of commissioners was approved and final partition made on May 7, 1879.Appellants took a part of the land in controversy, as heirs, in that partition, and the residue of that in controversy was set apart to another heir of John D. Alston, and the interest of those persons was acquired by appellee under sales made under executions against them as distributees, for costs of partition adjudged against them.Those sales are admitted to have been regularly made, and it is further conceded that appellee paid valuable consideration, without knowledge of any vice in the judgment under which the executions issued; but it is claimed that the judgment was void because appellants, who were minors when the judgment was rendered, were not cited, although they were represented by a guardian ad litem appointed by the court.The suit in which the judgment in question was entered was brought by the other heirs of John D. Alston against appellants on September 20, 1875, and citations to the defendants were issued on the day the suit was brought, commanding them to appear at the next October term of the court; but the returns made on those citations on the 27th and 29th of the same month showed that they were not served, because defendants were not to be found in Dallas county, and no other citations were found among the papers of the case, and the record does not affirmatively show that any others were issued.This is an agreed case, and the other facts affecting the question of jurisdiction are thus given: "(6) The following entry is made on the judge's docket, viz.: `October term, 1875, Phillip Lindsey appointed guardian ad litem for the defendants Thos. and Richard Aslton.'There is nothing else to indicate when the guardian ad litem was appointed.June 15, 1876, the guardian ad litem filed for the said Thos. and Richard Alston an answer containing a general and special demurrer and a general denial.Said guardian represented said minors throughout said proceedings, and in the judgment affirming the report of the commissioners, appointed as hereinafter shown, to divide the land, a fee of twenty-five dollars was allowed said guardian ad litem for his services as such.(7)April 29, 1878, John M. Stemmons was permitted to intervene in said cause.In his plea of intervention filed on said date he alleged that on April 9, 1858, Richard Alston, Sr., father of defendants Thos. and Richard Alston, sold by metes and bounds fifty acres of said 426-acre survey to Jesse Atterbury, and that Atterbury afterwards sold the same to Estes, and Estes afterwards sold the same to intervener.Intervener asked that fifty acres of the land to which Richard and Thos. Alston were entitled by reason of their heirship from their father, Richard Alston, Sr., be set aside to him.(8)April 29, 1878, judgment was rendered in said cause.There were no recitals in said judgment that defendants had been served with citation, or that the court had jurisdiction over their persons, other than the following recital in the judgment, viz.: `This day came the parties by their attorneys, and waive a jury, and submit the matters in controversy, as well of fact as of law, to the court, and the evidence and argument of counsel being heard,' etc.This judgment determined the interest of each of the parties in said tract of land.The interest of Richard and Thomas Alston together was adjudged to be one-sixth, out of which it was decreed that the intervener, Jno.M. Stemmons, was entitled to fifty acres.Commissioners were appointed to partition said survey in accordance with said judgment, and were directed to set aside to intervener fifty acres out of the one-sixth adjudged to the said Richard and Thomas Alston.(9) The original petition filed in said partition proceedings represented that there were four of the Angell heirs, entitled together to one-twelfth of said survey.The four heirs were named.The decree made no mention of Thomas Angell, one of the Angell heirs, but it ascertained and named the parties to whom the land in controversy jointly belonged, and assigned to each one his interest, naming the three Angell heirs as entitled to one-twelfth, and upon this basis...