Boyles v. Cohen, 12167

• Citation: 230 S.W.2d 604
• Decision Date: 11 May 1950
• Docket Number: No. 12167,12167
• Parties: BOYLES v. COHEN.
• Court: Texas Court of Appeals

Page 604

230 S.W.2d 604

BOYLES v. COHEN.

No. 12167.

Court of Civil Appeals of Texas, Galveston.

May 11, 1950.

Rehearing Denied June 1, 1950.

W. J. Mills, Houston, for appellant.

Woodul, Arterbury, Folk & Wren, Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellee, H. M. Cohen, in statutory trespass to try title form for recovery from appellant, Edward S. Boyles, of the title and possession of the north 1/2 of Lot 8, the south 3/4 of Lot 9, and the adjoining S. W. 25 X 62 1/2 feet of Lot 11, Block 428, S. S. B. B. Addition to the City of Houston, Harris County, Texas. The action also sought to review and declare void a tax judgment and the order of sale and constable's deed thereunder in a judgment rendered in the District Court of Harris County, Texas, involving the property.

In answer to one special issue submitted, a jury found that appellee, H. M. Cohen, had not been served with citation in Cause No. 266,969, styled City of Houston v. H. M. Cohen et al. Judgment was rendered awarding appellee the title and possession of the property involved in the suit.

Appellee alleged that he was the owner of the property in controversy and that it had been illegally sold under an order of sale issued in said Cause No. 266,969 for taxes allegedly due for the years 1920 and 1921. He alleged and testified that the first and only information he had ever received in reference to said tax suit or tax deed affecting the property was a registered letter from appellant notifying him of the fact that he had bought the property two years before and that he then owned it.

The material facts in the case are undisputed. They are substantially as pled.

The action sought to be declared void was brought by the City of Houston, through its tax attorney, in the 11th District Court of Harris County on June 20, 1940, for recovery from appellee, H. M. Cohen, Investors Syndicate, and Hermann Hospital Estate of taxes amounting to $33.68, alleged to be due on the property involved for the years 1920 and 1921. A default judgment was rendered against H. M. Cohen and Investors Syndicate for foreclosure of an alleged tax lien and the property was ordered sold to satisfy the lien. The judgment in the tax suit recited that '* * * the defendants, H. M. Cohen and Investors Syndicate, though duly cited according to law, to answer plaintiff's petition as it fully appeared to the court, having failed to appear and answer in this behalf, but wholly made default * * *'. The judgment recited that the court found that the plaintiff had a good and valid lien against all the interest of H. M. Cohen and ordered a foreclosure of the lien. An order of sale was issued and the property was sold to J. F. Selby by constable's deed dated April 12, 1944, for the sum of $42.00. Appellee testified that the property was valued at $15,000.

On April 30, 1946, J. F. Selby petitioned the 11th District Court of Harris County to correct the judgment rendered in said tax suit so as to describe the property as it was described in the trial petition. No notice of this application was issued or served on the parties to the original tax suit and the court on the date the application was filed entered an order correctly describing the land, and a new tax deed was immediately executed by the same constable. The new tax deed was dated April 12, 1944, notwithstanding the fact that it was recited in the new deed that it was executed pursuant to an order of the court dated April 30, 1946. On September 13, 1946, J. F. Selby conveyed the land by general warranty deed to appellant, Edward S. Boyles.

When the instant suit was filed in the District Court of Harris County, the District Clerk gave it a number and endorsed on it the particular district court that was next in order on the filing list. When it was called for trial, it was assigned by the presiding judge to the 113th District Court of Harris County.

The citation in said tax suit, which was introduced in evidence, commanded appellee to appear and answer in the suit on February 9, 1942, whereas it recited on its face that it was not issued until February 10, 1942. None of the defendants appeared when the case was called for trial and a default judgment was taken against appellee and Investors Syndicate. Hermann Hospital Estate was not mentioned in the judgment rendered.

Appellant contends in the points of error on which he relies that the trial court erred in overruling his special exceptions to appellee's pleadings, in which he asserts that appellee's suit constituted a collateral attack upon said judgment, and that the court erred in admitting in evidence the sheriff's return and pleadings in the tax suit for the purpose of contradicting the jurisdictional recitals therein and for the purpose of establishing the fact that one of the original defendants in the suit, the Hermann Hospital Estate, was not disposed of in the said judgment, his contention being that Hermann Hospital Estate was disposed of by necessary implication. He contends that since said tax judgment was rendered in the 11the District Court, the 113th District Court did not have jurisdiction to render judgment in this suit.

Appellant's contention that this suit is a collateral attack upon the judgment in said tax suit cannot, we think, be sustained, for the reason that the judgment rendered did not dispose of all parties to the suit, either expressly or by implication. It has been uniformly held by the courts of this State that a judgment which does not dispose of all parties to a suit is not a final disposition of the case and is, in effect, an interlocutory order upon which no action can be maintained.

The case ...