Campbell v. Upson

• Decision Date: 11 May 1904
• Citation: 81 S.W. 358
• Parties: CAMPBELL et al. v. UPSON.
• Court: Texas Court of Appeals

Page 358

81 S.W. 358

CAMPBELL et al. v. UPSON.

Court of Civil Appeals of Texas.

May 11, 1904.

Appeal from District Court, Bexar County; S. J. Brooks, Judge.

Trespass to try title by Agnes M. Campbell and others against C. Upson, continued on his death against his widow and sole heir, Martha Upson. From a judgment for defendant, plaintiffs appeal. Affirmed.

J. D. Guinn and Paschal & Ryan, for appellants. Newton & Ward, for appellee.

FLY, J.

This is an action of trespass to try title instituted by appellants against C. Upson, who died pending the suit; his widow and sole devisee, Martha Upson, being made a party thereto. The action was for the recovery of about 500 acres of land in Bexar county, and the defenses of limitation and former adjudication were interposed by appellee. The court instructed a verdict for appellee.

The uncontroverted evidence showed that the land in controversy had been adjudicated to C. Upson in 1893, in a certain cause in the district court of Bexar county, Tex., in which appellants were defendants, and said C. Upson was an intervener. The brief of appellants presents as error the admission in evidence of the record and proceedings in above-mentioned suit, which consisted of a consolidation of two suits, one instituted by Adalicia Acklin and the other by Robert R. Barrow against Robert B. Campbell and others, and the plea of intervention therein of C. Upson, as well as the judgment in his favor for the land in controversy. The trial court admitted in evidence the original petition and answers in two cases, numbered 2,074 and 2,076, which had been consolidated, as well as pleas of intervention on the part of C. Upson and others, in which cases Adalicia Acklin and husband and Robert R. Barrow had sued Robert B. Campbell, through whom appellants herein claim the land, and others. The suits were instituted in August, 1857, in the district court of Bexar county, and answers were filed for the defendants by I. A. & G. W. Paschal, who were reputable and well-known attorneys of Bexar county. A number of interventions were entered at various times; the last being that of C. Upson, who filed his intervention on May 11, 1893, claiming a certain portion of the land described in the petition in the consolidated suits, being a part of what was known as the "Zambrano Tract." The petitions were objected to on the ground that they did not identify or comprise the land in controversy, and appellants herein were not parties thereto. The last objection was also urged to the answer filed in the suits. Appellants are the heirs of, and claim through, Robert B. Campbell, who was a defendant in the causes above mentioned; and it appeared that at the June term, 1867, of the district court of Bexar county, the death of Robert B. Campbell and R. S. Neighbors was suggested, and the cause continued to make parties, and at various times up to and including March 20, 1875, the same order was entered. The record failed to show that the heirs of Robert B. Campbell were ever served, or that citation to them was ever issued, or that they ever entered an appearance in the case. In the consolidated suits, 2,074 and 2,076, the land sued for was two leagues, known as the "Zambrano Tract." On a plat from the office of the Commissioner of the General Land Office of Texas, the Zambrano tract is described as the "Gonifacio Rodriguez and Gertrude Rodriguez heirs of Zambrano Tract." That plat also shows that the Zambrano tract is bounded on the south by two tracts patented to J. W. Garrety and one patented to F. Cadena, and on the west by survey No. 4. Another plat from the same office shows that surveys 131 and 132—the first in the name of Gonifacio Rodriguez, and the other in the name of Gertrude Rodriguez—are bounded on the south by the two Garrety surveys and the Cadena survey, and on the west by survey No. 4. That evidence is uncontradicted, and shows the identity of the Zambrano tract which was sued for in suits 2,074 and 2,076 with the Gonifacio and Gertrude Rodriguez surveys. C. Upson, in his plea in intervention, claimed the land as a part of the Gonifacio Rodriguez survey, and it is shown in this suit that the portion set apart to him in that intervention is the identical land claimed by appellants. We conclude, therefore, that the objection of appellants to the introduction in evidence of the record in the consolidated case above described, on the ground of a failure to show that the land sued for in this and that case is the same, is untenable.

The evidence is also objected to because it affirmatively appears that Robert B. Campbell had died during the pendency of the suit, and there was nothing in the record to indicate that his heirs had been made parties, and therefore the judgment was void and not binding on appellants. While there has been a little confusion in the opinions of this state on the effect that the death of a party to a suit has upon a judgment subsequently rendered, it seems now to be the settled doctrine that, where jurisdiction has been acquired over a party to a suit, a judgment rendered against him after his death will not be void, but will bind his heirs, and cannot be attacked in a collateral proceeding. While the proper and consistent procedure would have been to have cited the heirs and representatives of the dead party, and made them parties to the suit, and have given them an opportunity to be heard in the prosecution or defense of the rights to which they had succeeded, the failure to give them such an opportunity would be an irregularity, but would not destroy the efficacy of a judgment rendered without notice to them. Mills v. Alexander, 21 Tex. 154; Giddings v. Steele, 28 Tex. 732, 91 Am. Dec. 336; Milam County v. Robertson, 47 Tex. 222; Howard v. McKenzie, 54 Tex. 171; Denni v. Elliott, 60 Tex. 337; Harrison v. McMurray, 71 Tex. 122, 8 S. W. 612; Wilkerson v. Schoonmaker, 77 Tex. 615, 14 S. W. 223, 19 Am. St. Rep. 803; Lumber Co. v. Rhoades (Tex. Civ. App.) 41 S. W. 102; Knott v. Taylor (N. C.) 6 S. E. 788, 6 Am. St. Rep. 547; Allan v. Hoffman (Va.) 2 S. E. 602; New Orleans v. Gaines, 138 U. S. 595, 11 Sup. Ct. 428, 34 L. Ed. 1102. In the case of Milam County v. Robertson, above cited, it was said: "In this case the death of two of the appellees was suggested on the record before the judgment was rendered, and, as the suggestion was not traversed, it must be taken as true. If, therefore, it can be said that a judgment rendered against a party who dies after the jurisdiction of the court has attached, and before a final judgment, is an absolute nullity, it would unquestionably be within the power of the court to vacate its entry and revoke its judgment in this case. The decided weight of authority, as well as the intimation by this court in its opinions in which the subject has been referred to, seems fully to justify the conclusion that a judgment in favor of or against a party who is dead, unless his death is shown by the record itself, is, at most, only a ground for avoiding the judgment, and does not render it absolutely void. And indeed it seems to be by no means certain that anything more can be said, even where it is thus shown, the difference being merely as to means by which the error in the two cases can be shown and corrected." The same doctrine is expressed in Taylor v. Snow, 47 Tex. 462, 26 Am. Rep. 311.

After the death of R. B. Campbell was suggested to the court at the June term, 1867, the cause was continued to make parties, and was so continued until after March, 1875, but after that the cause was merely continued. It will be presumed that the object of the continuance for so many years was not abandoned by the court, but that the end was accomplished, and not until then was the order of continuance to make parties discontinued.

The record shows that a judgment was entered in favor of C. Upson on same day on which he intervened in the suit. To sustain the judgment, it will be presumed that the heirs of R. B. Campbell were in court, and are charged with knowledge of the same. Fleming v. Seeligson, 57 Tex. 524. The judgment in favor of C. Upson recites that the plaintiffs and interveners failed to appear and prosecute their suit, but does not mention the defendants, and the inference from that recital would not be that the defendants were not in court, but that they were, and did appear at the trial. The case of Roller v. Ried, 87 Tex. 76, 26 S. W. 1060, is cited by appellants in support of the proposition that, as C. Upson filed his plea of intervention on the same date that he obtained his judgment, no presumption of service can be indulged. The case is not in point. Roller, one of the defendants in that case, was a resident of the state of Virginia, and had not made an appearance in the case; and the court merely reiterated the principle enunciated in Bryan v. Lund, 25 Tex. 98, to the effect that when a new party appears in a case, whose claims affect the rights of a defendant, the pleadings of the new party must be served on the defendant, if he has not made an appearance in the case. In this case R. B. Campbell had been served and had appeared in court, and the presumption is that his heirs, after his death, had been served and appeared. At least, it did not affirmatively appear as in the Roller-Ried Case that they did not appear. The interests of society and good government demand that there must be confidence and trust in the solemn decrees of courts adjudicating property rights, and the hardships arising in individual cases from erroneous or careless decisions as to jurisdictional matters cannot be weighed against the injury that would result from allowing indiscriminate attacks upon the judgments of courts. It is far better that absolute verity should be attached to judicial records, although the rule may in its operation at times be productive of injustice, rather than break down the confidence that must be reposed in judicial decisions.

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