Burns v. Barker
| Decision Date | 19 December 1902 |
| Citation | 71 S.W. 328 |
| Parties | BURNS v. BARKER et ux. |
| Court | Texas Court of Appeals |
Appeal from district court, Leon county; J. M. Smither, Judge.
Action by J. P. Burns against J. C. Barker and wife. From a judgment in favor of defendants, plaintiff appeals. Reversed.
Ball, Dean & Humphrey and S. W. Dean for appellant.
This suit was brought by appellant against the appellees, J. C. Barker and wife, to recover certain land. The action was in the ordinary form of trespass to try title, the defendants answering by plea of not guilty. A trial before the court without a jury resulted in a judgment for defendants, from which plaintiff has appealed.
There was rendered in the justice court of precinct No. 3 of Madison county, Tex., a judgment by default in favor of J. P. Guinn against J. C. Barker, J. R. Donahoe, and J. W. Meredith, for the sum of $111.75, with interest and costs. The plaintiff claimed title to the land in question under a purchase at a sale under execution issued on the judgment above named, and offered the judgment execution and sheriff's deed made in consummation of the sale in support of his claim. The admission of these instruments was opposed by defendants on the ground that the citation in the suit in which the judgment was rendered had been served on defendant J. C. Barker on the 25th day of December preceding the date of the judgment, and, having been served on a legal holiday, the service was a nullity, and the judgment based thereon void. On these grounds they were permitted by the court, over the objection of plaintiff, to establish the grounds of their objection to the judgment by adducing a citation in said justice proceeding, the return upon which showed that it had been served upon Barker on December 25th. The court also permitted defendants to prove by parol that the service had been actually made upon Barker on that day. Upon hearing this proof, and it appearing that the justice judgment and the proceedings thereunder were the only basis for plaintiff's claim, the court refused to hear further proof, held the justice judgment a nullity, and rendered judgment for defendants. Of this action on the part of the trial judge the appellant here complains.
The course on the part of defendants thus permitted by the court was a collateral attack upon the judgment, made by one of the parties thereto. The general rule is that, where the court has jurisdiction of the parties and the subject-matter in the particular case, its judgment, unless reversed or annulled in some proper proceeding, is not open to attack or impeachment by parties or privies in any collateral action or proceeding whatever. 1 Black, Judgm. § 245. The rule applies to every judgment which is not absolutely void. Id. 246. A recital in a judgment that defendant was legally served with process, being a matter which the court must judicially ascertain before rendering his decree, cuts off all inquiry in a collateral proceeding as to the legality of the service. Treadway v. Eastburn, 57 Tex. 212; 1 Black, Judgm....
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...293 (Tex.Civ.App.--Fort Worth 1943, writ ref'd w.o.m.); Benchoff v. Stephenson, 72 S.W. 106, 107 (Tex.Civ.App.1902, no writ); Burns v. Barker, 71 S.W. 328, 329 (Tex.Civ.App.1902, no writ); Cox v. Trent, 20 S.W. 1118, 1119 (Tex.Civ.App.1892, no writ). Here, the Hospital and the Center filed ......
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