Bynum v. Davis

• Decision Date: 13 August 1959
• Citation: 327 S.W.2d 673
• Parties: J. A. BYNUM, as the County Auditor of Houston County, Appellant, v. Kenneth DAVIS, a Minor, by Next Friend, et al., Appellees (two cases). Nos 13448, 13449.
• Court: Texas Court of Appeals

Page 673

327 S.W.2d 673

J. A. BYNUM, as the County Auditor of Houston County, Appellant, v. Kenneth DAVIS, a Minor, by Next Friend, et al., Appellees (two cases).

Nos 13448, 13449.

Court of Civil Appeals of Texas, Houston.

Aug. 13, 1959.

Rehearing Denied No. 13449 and Rehearing

Granted in Part (No. 13448) Sept. 17, 1959.

B. R. Reeves, Palestine, Adams & Price, Kennedy & Granberry; F. P. Granberry, Crockett, for appellant.

J. B. Sallas, Crockett, for appellees.

WERLEIN, Justice.

On March 11, 1959, transcripts were filed by appellant in these two separate causes: No. 13,448, purporting to be an appeal from an order of the County Court of Houston County, Texas, overruling and denying a motion in the nature of a bill of review filed December 15, 1958, by appellant, J. A. Bynum, in his capacity as the County Auditor of Houston County, Texas, and also in his individual capacity as a taxpaying citizen of said county, and as a representative of all others in said county who are tax-paying citizens, to set aside a default judgment taken in said cause in which he had not been made a party; and No. 13,449, being an appeal from a judgment of mandamus entered by the same Court in favor of appellees against appellant in his official capacity as Auditor of Houston County, Texas. Counsel for appellant and appellees in both causes have requested this Court to enter an order requiring that both cases be treated as one for the purpose of briefing, and that the Statement of Facts filed in No. 13,449 be deemed filed in No. 13,448. This we cannot do. Appellant failed to file an appeal bond in Cause No. 13,448, and hence no appeal has been perfected therein. Since this Court is required to take notice of such fact, said appeal is dismissed for want of jurisdiction. Rule 363, Texas Rules of Civil Procedure.

In Cause No. 13,449, Kenneth Davis, a minor, by his next friend, M. O. Davis, joined by Lloyd Lovell, for formal reasons only, in his official capacity as Sheriff of Houston County, Texas, sued appellant, J. A. Bynum, in his official capacity as County Auditor or Houston County, to mandamus him to approve a voucher in the amount of $250 issued and made payable to appellee, Kenneth Davis, in full and complete satisfaction of a default judgment in such amount taken on October 27, 1958, by said minor against Houston County and the Commissioners' Court of Houston County in the County Court of Houston County in said Cause No. 13,448 (No. 2894 in the County Court).

Appellant alleged in defense of this mandamus proceeding that the default judgment taken in Cause No. 13,448 was void for the reason, among others, that the Court in such cause never acquired jurisdiction of either of the defendants.

After both parties had rested, the Court, on appellee's motion, withdrew the case from the jury and decreed that a peremptory writ of mandamus issue directing and commanding appellant, in his capacity as County Auditor of Houston County, Texas, to approve said voucher in the amount of $250, payable to appellee, Kenneth Davis, in full and complete satisfaction of said judgment rendered October 27, 1958. From such judgment appellant has perfected his appeal.

Appellant asserts in his 4th Point that the judgment of October 27, 1958, was void for the reason that the only citation issued therein was not addressed to the defendant and therefore the Court never acquired jurisdiction over any party to such action.

Appellees pleaded and introduced in evidence the judgment upon which they rely, in favor of appellee, Kenneth Davis, against Houston County and the Commissioners Court of Houston County. The judgment recites that 'though duly served with process, the said defendant, as at all times heretofore, failed to answer in this behalf but wholly made default.' It does not recite service of process upon either of the defendants by name. The citation and return show affirmatively that there was no such service. The citation which was introduced in evidence is addressed only to 'County Judge, et al.' It is not addressed to Houston County nor to the Commissioners' Court of Houston County. The Sheriff's return shows that the citation was executed by delivering a copy of the citation together with a copy of the plaintiff's petition to Judge Albert K. Daniel. Although the petition in said Cause named the parties, the citation was still insufficient. Fort Worth Lloyds v. Johnson, Tex.Civ.App.1939, 129 S.W.2d 1157 no writ history.

Rule 101, T.R.C.P., provides, among other things, that 'The citation shall be styled 'The State of Texas' and shall be directed to the defendant and shall command him to appear by filing a written answer * * *.' This provision is mandatory. The failure to comply with such provision rendered the judgment in question vulnerable and subject to being set aside on direct attack. See Carborundum Co. v. Keese, Tex.Civ.App.1958, 313 S.W.2d 332, in which it was held that where the citation was directed to the agent of a company there was no valid service upon the company to support a default judgment, and that the requirement that citation shall be directed to the defendant is mandatory. See also Fort Worth Lloyds v. Johnson, supra; Temple Lumber Co. v. McDaniel, Tex.Civ.App. Beaumont 1930 24 S.W.2d 518; Brecheen v. State, Tex.Civ.App. El Paso 1936, 89 S.W. 259.

The answer of appellant in defense of the present suit for mandamus does not constitute a direct attack upon the default judgment rendered in Cause No. 13,448. He is sued and answers herein only in his official capacity as Auditor of Houston County, Texas. He was not a party to Cause No. 13,448 in any capacity although he did file therein said motion in the nature of a bill of review, which we cannot consider. Ordinarily a person not a party to a suit may not directly attack a judgment rendered in such suit. Estey & Camp v. Williams, 63 Tex.Civ.App. 323, 133 S.W. 470, writ denied. The judgment entered in said Cause No. 13,448 is regular and valid on its face. The recital in such judgment, which was the last act of the Court in the case, reciting that the defendant was 'duly served with process,' imports in a collateral proceeding such as this, absolute verity. Treadway v. Eastburn, 1882, 57 Tex. 209. In Switzer v. Smith, Tex.Com.App.1927, 300 S.W. 31, 33, 68 A.L.R. 377, the court said:

'Since Treadway v. Eastburn, 57 Tex. 209, it has been the uniform holding of the courts in this state that, as against a collateral attack the recitation of due service in the judgment proper is conclusive upon such matter, and may not be contradicted by other facts, whether appearing in the record or aliunde. Such recitation imports absolute verity. Martin v. Burns, 80 Tex. 676, 16 S.W. 1072; Gibbs v. Scales, 54 Tex.Civ.App. 96, 118 S.W. 188 (writ refused); Chapman v. Kellogg (Tex.Com.App.) 252 S.W. 151; Borders v. Highsmith (Tex.Civ.App.) 252 S.W. 270; Mariposa Mining Co. v. Waters (Tex.Civ.App.) 279 S.W. 576; Gillette's Estate v. State (Tex.Civ.App.) 286 S.W. 261; Barton v. Montex Corp. (Tex.Civ.App.) 295 S.W. 950.'

See also Bemis v. Bayou Development Company, 184 S.W.2d 645, writ refused; Kimbrough v. Neill, Tex.Civ.App.1953, 256 S.W.2d 202, refused, n. r. e. Appellant's 4th Point is therefore overruled.

Appellant's Points with respect to the alleged invalidity of the budget amendment because of its failure to make funds available with which to pay the claim in question, the county's lack of funds as well as lack of anticipated revenues, the alleged waiver of appellees' claim and their failure to furnish a withholding tax certificate, are all overruled. They relate to defenses that could have been asserted by the county in Cause No. 13,448, had it desired to defend that suit. If we assume such defenses might have rendered appellees' claim invalid, such invalidity would not make the judgment rendered thereon invalid or subject to collateral attack. The law is well settled that a judgment appearing to be valid on its face and rendered by a court having jurisdiction of the subject matter of the suit and person of the defendant, cannot to collaterally attacked by evidence dehors the record. If any possible state of facts would support it, it is not void, and it cannot be questioned collaterally in a proceeding to enforce it by mandamus. City of Sherman v. Langham, 1897, 92 Tex. 13, 42 S.W. 961, 39 L.R.A. 258.

Appellant's 3rd Point, asserting that the Court was not authorized to enter the default judgment upon the claim sued upon, is overruled. The general rule is that in the absence of special statutes, general rules governing judgments apply in actions by or against counties. 20 C.J.S. Counties Sec. 335, p. 1295. We have not found any Texas statute prohibiting the entry of a default judgment against a county, nor have we been cited to or found any Texas case holding that a default judgment as a matter of law may not be taken against a county. Further, there would seem to be no good reason why a default judgment may not be taken against a county in a proper case where the county has failed to answer after being duly served with process. See Washington County v. Porter, 1900, 128 Ala. 278, 29 So. 185. But regardless of that, this Court cannot on appellant's collateral attack of the default judgment in question, look into the merit or lack of merit of appellees' claim, nor determine whether or not the trial court erred in permitting a default judgment to be taken against the county on such claim.

Appellant's last Point, asserting that appellant was never asked to take any steps toward payment of the default judgment is without merit. The County Judge testified that the claim was approved by the Commissioners' Court and that he personally attached a copy of the judgment to the claim and that the same was attached to the voucher when it left the Commissioners' Court. Appellant testified that he knew appellees had obtained a judgment and that he would not approve a voucher to satisfy...