Carpenter v. Anderson

• Decision Date: 17 November 1903
• Citation: 77 S.W. 291
• Parties: CARPENTER et al. v. ANDERSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 291

CARPENTER et al. v. ANDERSON.^*

Court of Civil Appeals of Texas.

November 17, 1903.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Suit by S. L. Anderson against A. G. Carpenter and others. From a judgment in favor of plaintiff, defendant A. G. Carpenter and another appeal. Reformed and affirmed.

L. B. Moody, for appellants. Fisher, Sears & Sherwood, for appellee.

GILL, J.

This is a suit by the appellee, S. L. Anderson, against the appellants, A. G. & J. C. Carpenter, and Bradley, Alderson & Co., plaintiffs in a justice court judgment rendered against appellee and S. P. Hudson, purchaser of the land in controversy at execution sale thereunder. The petition contained two counts, the first being in the ordinary form of trespass to try title. By the second he sought, as against all the defendants, to set aside the justice judgment, and the sales and deeds made pursuant thereto. The reasons averred for the vacation of the judgment were that plaintiff was a nonresident of the state of Texas, and had never been served with any sort of process. As ground for setting aside the sheriff's sale, he averred that he had received no notice thereof as required by law, and for this reason, and because the execution was general, instead of against the property attached, the sale was void. Further, that the property sold was worth at the time of the sale $5,000, of which the purchaser was aware; that it was nevertheless sold to him for the unconscionable price of $53.33; that the purchaser's vendee had full notice of this, of the want of service, and of the other irregularities averred. Bradley, Alderson & Co. did not answer. S. P. Hudson disclaimed. A. G. & J. C. Carpenter answered by general denial and plea of not guilty.

The court upon the trial directed the jury to return a verdict for appellee, which was done, and judgment rendered accordingly. The Carpenters alone have appealed. Their contentions are: First. That the judgment of the justice, on which their title rests, was only voidable, and not void; and, as the record was fair on its face, a stranger thereto could treat it as of absolute verity, and acquire rights thereunder which could not be disturbed, even though the judgment should be set aside as between the parties on direct attack. Second. That the attack is collateral, and the judgment therefore unassailable in this proceeding. Third. That, if the judgment and sale were rightly set aside, the court nevertheless erred in refusing to require of plaintiff a return of the purchase money paid by them to S. P. Hudson, or at least the sum paid by Hudson at execution sale.

The appellee propounds the propositions: (1) That the justice of the peace is not authorized by the statute to procure substituted service on nonresidents by issuance and service of notice, as in the district or county courts. (2) If he had such authority, the service was nevertheless void; having been made on the return day of the writ, at which time it was functus officio. (3) There being in fact no lawful service, the judgment was absolutely void for want of jurisdiction of the person of Anderson, and, being so, no one could acquire any rights thereunder. (4) If only voidable, and not void, this is a direct attack, all parties at interest being made defendants, and the court properly heard proof of want of service. (5) That whether void or only voidable, the defendants had notice of the facts, as well as the want of sufficient consideration at the sheriff's sale, wherefore they cannot require of appellee the return of any sum as a condition to the vacation of the judgment and recovery of his land.

The following facts are undisputed: The plaintiff was indebted in the sum of $35.48 to the firm of Bradley, Alderson & Co. This firm brought suit on the claim by original attachment in the justice court of Harris county, Tex. The constable levied the attachment on the land in controversy. The suit was instituted on June 29, 1900. Anderson is now a resident of Minnesota, and has never resided in Texas. The justice record shows that, on the day of the filing of the suit, a notice to serve defendant was issued to him, as a resident of Washington county, Iowa. Alias notice was issued August 21, 1900, and the fact noted on the docket. On April 2, 1901, a pluries notice to serve was issued to Minnesota, and the fact noted on the docket. It was also noted that same was executed in Minnesota April 8, 1901. Then follows the justice judgment, dated June 25, 1901, which recites that "defendant, though duly and legally served with citation, came not, but wholly made default." Judgment for the debt was thereupon rendered, and the attachment lien foreclosed. It thus appears that the last judicial utterance concerning service was a solemn declaration that it had been lawfully had. The notice of April 2, 1901, was returnable April 8, 1901. It had indorsed thereon an affidavit of one Neuenschwander to the effect that on April 8, 1901, he had delivered to Anderson, in person, in the state of Minnesota, a true copy of the notice, and copy of plaintiffs' petition. It was shown by parol that no other process issued, and that the judgment was actually rendered on the return of Neuenschwander, as stated above. Upon this phase of the case, the only point of dispute is the truth of the return. Anderson swears there was in fact no service, and Neuenschwander that the return stated the truth. Execution was duly issued and levied upon the land, and same was duly advertised for sale. The constable mailed a notice of the proposed sale to the defendant in the judgment, addressed to his last known address in Minnesota. Anderson swears it never reached him. The land was duly sold on August 6, 1901, and S. P. Hudson, one of the defendants in this suit, became the purchaser for the sum of $53.33. At that time the 226 acres of land was worth between $10 and $15 per acre. It fronted on an improved public road, and lay within five miles of the city of Houston. Thereafter Hudson, through an agent, proposed to sell the land to the Carpenters. The latter, being fully aware of the value of the land, consulted an attorney as to the state of the title, and especially as to the validity of the justice judgment and the sale thereunder. The attorney advised him that the title thus conveyed was good. Thereafter the Mr. Carpenter who had charge of the proposed purchase inspected personally the justice record, and acquainted himself with its contents. This investigation and negotiation resulted in a sale of the land to the Carpenters on the 8th of November, 1901, for a cash consideration of $1,808; Hudson conveying by warranty deed. The Carpenters also had actual knowledge of the sum the land brought at execution sale.

We shall not take up in detail, nor in the order of their presentation, the assignments of error urged by appellants. They fall under the classifications indicated by our statement of appellants' contentions on this appeal.

In Texas, justices of the peace exercise a general jurisdiction within their limitations, and their judgments are to be measured and estimated by the same rules as apply to judgments of the district and county courts. Davis v. Robinson, 70 Tex. 395, 7 S. W. 749; Heck v. Martin, 75 Tex. 472, 13 S. W. 51, 16 Am. St. Rep. 915.

First, therefore, of their contentions that the nature of this attack is collateral, and that evidence aliunde the record is inadmissible to disclose a secret vice in the justice judgment. That the attack is direct, and not collateral, is so well settled, we forbear to enlarge upon the proposition, but cite a few leading Texas cases on the point, and pass to the more difficult problems presented on this appeal. Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329; Crawford v. McDonald, 88 Tex. 630, 33 S. W. 325.

It follows, therefore, whether the justice judgment be held absolutely void or merely voidable, the court rightly heard proof aliunde on the issue of service. This conclusion disposes of all the assignments addressed to the action of the trial court in this respect.

But whether there was actual service of the notice issued by the justice was a subject of conflict in the evidence. So, in order to justify the trial court in directing a verdict in favor of appellee, we must conclude that the justice was without power under our statute to procure service by the means used. Article 1602 of our Revised Statutes of 1895 is as follows: "All the rules governing the issuance and service and the return of citations, issued out of the district and county courts, and providing for acceptance of service, and entering appearance, shall, except where otherwise provided by law, govern also the justices' courts in so far as they can be applied to the proceedings of said courts." Article 1647 provides: "No judgment, other than a judgment by confession, shall be rendered by a justice of the peace against any party who has not entered an appearance, or waived service, unless such party has been cited either personally or by publication." The article last quoted not only prescribes but limits, the cases in which a justice may render judgment. Article 1602 renders applicable the rules governing district and county courts as to citations, but no further. It will be noted that in each of the articles mentioned the word "cited" or "citation" is used. Now, a citation is a...