Brooks v. Powell

• Citation: 29 S.W. 809
• Parties: BROOKS v. POWELL.
• Decision Date: 27 February 1895
• Court: Texas Court of Appeals

29 S.W. 809

BROOKS v. POWELL.

Court of Civil Appeals of Texas.

February 27, 1895.

Appeal from district court, Coleman county; R. B. Truly, Special Judge.

Action by Mrs. H. E. Brooks against P. P. Powell. From a judgment for defendant, plaintiff appeals. Affirmed.

The statement of the nature and result of the suit, as made by counsel for appellant in their brief, accepted by appellee, and found to be correct, is as follows: Appellant, Mrs. H. E. Brooks, filed this suit in the district court of Coleman county against appellee, P. P. Powell, on the 23d day of June, 1891, for the recovery of 600 acres of land, a part of the Richard M. Collins survey, situated in Coleman county, as shown by her amended petition, filed August 12, 1892, upon which the case was tried in the court below. Plaintiff sought a recovery upon the ground that defendant held the land under a deed from W. L. Vining, who, with his partner, J. O. Woodward had procured a judgment by default against the plaintiff in the justice's court of precinct No.1, Coleman county, for the sum of $150, upon which an execution had been issued, which was levied upon the land in controversy, and at the sale under said execution the said Woodward & Vining were the purchasers, for the sum of $135; that said Woodward conveyed his interest in said land to said Vining by quitclaim deed; and that said Vining then conveyed the land to defendant, Powell. Plaintiff alleges: That said judgment, execution, levy, and sale were null and void, for the several reasons set out in the petition, to wit: First, that the judgment was void, because plaintiff was never served with a citation to appear and answer said suit in the justice's court, and therefore the court never acquired any jurisdiction over her to render said judgment; second, because the service, as shown by the record itself, was null and void; third, because, being a judgment by default, it purported to have been rendered without other evidence than upon a liquidated demand, to wit, an itemized sworn account for $150, whereas the record of said cause shows that said demand was not liquidated, nor upon such sworn account as would, of itself, support a judgment by default. That said execution was null and void because it had no valid judgment to support it, and that the levy was void for the like reason, and also because it contains no sufficient description of the land attempted to be levied upon. That the sale under said execution was void — First, because made under a void judgment and execution and levy; second, because made on a day other than that provided by law, to wit, on Wednesday, the 2d day of October, 1889. Plaintiff further alleged that she knew nothing of said judgment, levy, or sale of said land until long after they were made; that, at the time of the institution of said suit in the justice's court of Coleman county, the rendition of said judgment, the levy upon and sale of said land, and ever since, she was, and still is, a resident of Brazoria county, Tex.; that she was not notified to point out any property on which to make said levy; that, by reason of said irregularities and void proceedings on the part of said Woodward & Vining, no other person would bid on the said land at said sale, and consequently it was bid in by them at the grossly inadequate sum of $135, the land being at the time of the sale of the value of $2,000; that said defendant, Powell, was at the time of his purchase a partner with said Vining, and that he was, as plaintiff believes, aware of said defects and irregularities in said proceedings; and that no consideration passed from him to said Vining for said property, but that said deed to him was only pretended and done to defeat plaintiff of her rights. Wherefore plaintiff alleged that she had been deprived of her property without due process of law, in violation of the constitution of the state of Texas and the constitution of the United States. Prayer for judgment against defendant, Powell, for title and possession of premises, for damages for the use thereof in the sum of $200, or in the event that the court should say that said Powell was an innocent purchaser, for value, of the premises, that she be permitted to tender to him in open court the amount of money paid by him for said premises, and legal interest thereon, less the value of the use and occupation, for costs of suit, and all such other relief as she might be entitled to in law or equity. The defendant, by amended answer, filed September 20, 1892, replied to plaintiff's petition by general demurrer, plea of not guilty, and plea of innocent purchaser, for valuable consideration, without notice of the defects complained of. On September 16, 1893, the case was tried before Special Judge R. B. Truly, and judgment rendered for defendant; and, the court having overruled her motion for a new trial, the plaintiff appeals to this court.

G. G. Kelley and Randolph & Webb, for appellant. Sims & Snodgrass, for appellee.

COLLARD, J. (after stating the facts).

The findings of fact by the court below are substantially correct, and we find the facts supporting the conclusions of the court as follows: Plaintiff below, Harriet E. Brooks, claims the land in controversy as her individual property, and defendant claims the same under a judgment, execution sale by sheriff, and sheriff's deed to Woodward & Vining, deed of Woodward to Vining, and deed of Vining to Powell. (1) Woodward & Vining recovered a judgment by default in the court of the justice of the peace of precinct No. 1 in Coleman county against the plaintiff, Harriet E. Brooks, on the 26th day of August, 1889, for the sum of $150, with legal interest and costs of suit. The suit of Woodward & Vining was against Harriet E. and W. S. Brooks. There being no service against W. S. Brooks, he was dismissed, and judgment by default was taken against Harriet E. Brooks. The judgment recites: "This, the 26th day of August, 1889, came on to be heard the above-entitled cause, and came the plaintiffs in person for themselves, and it appearing to the court that citation had regularly issued in due form on the 1st day of July, 1889, to both defendants, Harriet E. Brooks and W. S. Brooks, and it appearing further to the court that the citation issued to W. S. Brooks had been returned not served, the plaintiffs say that they will not further prosecute their said suit against said defendant W. S. Brooks, and the said citation against defendant Harriet E. Brooks having been properly served on her, and returned into this court in due time and form of law, and said defendant Harriet E. Brooks having wholly failed to appear and answer in her behalf and made default, and it appearing to the court that the cause of action is liquidated and proved by an instrument in writing, to wit, an itemized sworn acct. for $150, it is therefore considered, ordered, and adjudged," etc. (2) Plaintiff read in evidence a certified copy of original citation issued by the justice in the cause on the 1st day of July, 1889, in due form of law, commanding the sheriff or any constable of Brazoria county, Tex., to summon Harriet E. and W. S. Brooks to be and appear at the next regular term, the same being July 22, 1889. The return of the officer, Watt Holt, constable of precinct No. 1 of Brazoria county, indorsed on the citation, is as follows: "Came to hand the 19th day of July, 1889, and executed the 21st day of July, 1889, by delivering to Mrs. Harriet E. Brooks a copy of this citation." The court below finds in his conclusions of fact that the above was the only citation introduced in evidence; but we find in the statement of facts the following: "Defendant here introduced the original citation to Harriet E. Brooks in the cause of Woodward & Vining v. Harriet E. and W. S. Brooks, together with the return thereon, which original citation was in manner and form as required by law, dated 1st July, 1889, and showed service upon Harriet Brooks to have been made either on 20th July, 1889, or 21st July, 1889; and the court, from an inspection of the original return, found that said original return showed service upon Harriet E. Brooks 20th July, 1889." The court, in his findings of fact filed, says that the return on the original citation shows service either on the 20th or 21st day of July; "the court, from inspection of the figures, being uncertain as to which date is intended, the certified copy reciting the 21st." We find that the copy offered by plaintiff was a copy of the above-mentioned original. (3) Execution in due form of law issued out of the justice's court in the cause on the 6th day of September, 1889. (4) The sheriff's return, indorsed on the execution, shows that he received it on the 6th day of ...