Bryant v. Buckner

• Decision Date: 07 December 1886
• Parties: BRYANT and others v. BUCKNER and others.
• Court: Texas Supreme Court

2 S.W. 452

BRYANT and others v. BUCKNER and others.

Supreme Court of Texas.

December 7, 1886.

Appeal from Wise county.

Action of trespass to try title. Judgment for defendants. Plaintiffs appealed.

Holman Bros., for appellants. Lovejoy, Dickson & Patterson, for appellees.

WILLIE, C. J.

This is an action of trespass to try title, brought by the appellants against Buckner, and other defendants, to recover one-fourth of a league of land lying in Wise county, and originally granted to William Watson. The plea of defendants was not guilty, and judgment was rendered by the court below in their favor, and from that judgment this appeal is taken.

The appellants claim the land as heirs or vendees of the heirs of one E. T. Watson, and each of the appellees claim a distinct portion of the land as a purchaser from N. B. Roberts, who bought it at execution sale made under a judgment obtained by Roberts against E. T. Watson and W. A. Davis in a justice's court of Fannin county. The appellants say that this judgment was obtained by default in a court of special jurisdiction, and does not show upon its face that service had been had upon the defendants in the judgment, and was therefore void. It was obtained before the presiding justice of the peace of Fannin county, who, by act of May 26, 1878, had jurisdiction conferred upon him coextensive with the limits of his county where the amount in controversy was not less than $100 and not more than $1,000. 2 Pasch. Dig. 6405b.

In Orr v. Rhine, 45 Tex. 354, this act was held to be constitutional, and it was said that its only effect was to enlarge the jurisdiction of the presiding justice. In Williams v. Ball, 52 Tex. 603, it was held that justices' courts, being created by the constitution, exercised, within their defined limits, general jurisdiction, and that their judgments could not be attacked as void for not showing all the facts necessary to give a court jurisdiction.

The supreme court of the United States and other courts, following the same line of decision, have held that it is only when a court of general jurisdiction has conferred upon it special and summary powers, wholly derived from statutes, and which do not belong to it as a court of general jurisdiction, and when such powers are not exercised according to the course of the common law, that its judgments are to be treated like those of courts of special and limited jurisdiction. Galpin v. Page, 18 Wall. 350; Harvey v. Tyler, 2 Wall. 342; Pulaski Co. v. Stuart, 28 Grat. 879.

Here there was no power to proceed in a special and summary manner, but the whole course of procedure, in matters coming within the enlarged jurisdiction, was such as is recognized at common law and by our constitution and statutes, and generally in use in the courts of the state taking cognizance of similar matters. We think, therefore, that the judgment could not be collaterally attacked for not showing on its face that service had been obtained upon the defendants.

The other objections, going as they do, to the cause of the action upon which the judgment was rendered, and the want of evidence to support it, are, of course, untenable in a collateral proceeding. An execution was issued upon this judgment on the third of May, 1881, by the justice of the peace who succeeded in office the justice by whom the judgment was rendered. It is objected that the justice issuing the execution had no authority to do so; the judgment being for an amount beyond his jurisdiction, and the special jurisdiction of the court having been abolished without provision of law for the issuance of execution upon judgments rendered by virtue of such special jurisdiction. The justice of the peace by whom this execution was issued, succeeded, under the general law of the state, to the books and papers of his predecessor, and was required to dispose of his unfinished business. There was no law in existence at the time prohibiting him from issuing an execution for more than $200. In issuing the execution, he was not taking cognizance of a cause involving an amount beyond his jurisdiction. His predecessor has authority to render the judgment, and this justice was required to enforce such judgments by execution, without reference to what would have been his own powers had the cause come before him instead of his predecessor. In committing to him the unfinished business of his predecessor the law, in effect, authorized him to execute the former's valid judgments, no matter upon what cause of action rendered, in as full a manner as if a special statute giving him that power had been enacted.

We think the execution was lawfully issued. It was made returnable within 60 days, and the sheriff's return, made August 10, 1881, shows that it was received by the sheriff on the eighteenth of May, 1881, and that the land in controversy was sold under it on the first Tuesday of July, 1881, which was the fifth day of that month, and more than 60 days after the execution was issued. The sheriff's deed to Roberts showed that the levy was made, upon the eighth day of May, of Watson's interest as it existed on the eighteenth of that month, and that the sale occurred on the first Tuesday in June, 1881, which was the seventh day of that month. The sheriff testified that the "eighth of June" was a clerical mistake for the "eighteenth;" and that "July," in the return, was a clerical mistake for "June."

It is contended by the appellants that, as between them and the appellees, the deed and return must be taken as they appear, and not as they should have been written, and they show a void sale, which conveyed no title to the purchaser. They further contend that the deed, as explained by the sheriff, shows a sale after only 19 days' notice, and the sale is void for that reason. To these objections it may be answered that the purchaser's title is not dependent on the sheriff's making a proper return of the execution. "He has no control over the officer, and therefore is not prejudiced by a deficient or incorrect return, nor by the entire absence of any return whatever," (Freem. Ex'ns, § 341;) and if the return is incorrect through mistake, as was the case here, parol evidence is admissible to explain and correct it, (Ayres v. Duprey, 27 Tex. 593; King v. Russell, 40 Tex. 125; Garner v. Cutter, 28 Tex. 175. Besides, in a conflict between the sheriff's deed and his return, the recitals of the deed always control. Rogers v. Cowood, 1 Swan. 142; Smith v. Kelly, 3 Murph. 507. The purchaser's...