Clark v. Puls

• Citation: 192 S.W.2d 905
• Decision Date: 04 February 1946
• Docket Number: No. 5699.,5699.
• Parties: CLARK v. PULS et al.
• Court: Court of Appeals of Texas

192 S.W.2d 905

CLARK v. PULS et al.

No. 5699.

Court of Civil Appeals of Texas. Amarillo.

February 4, 1946.

Rehearing Denied March 4, 1946.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Suit by Cynthia M. Puls and Ed Puls, her husband, against Earl Clark to set aside tax judgment and sheriff's deed issued thereunder, and to quiet title. Judgment for plaintiffs, and defendant appeals.

Reversed and rendered.

Boyer & McConnell, of Perryton, for appellant.

Hoover, Hoover & Cussen, of Canadian, and R. T. Correll, of Perryton, for appellees.

STOKES, Justice.

On July 8, 1942, the City of Booker, a municipal corporation located in Ochiltree and Lipscomb Counties, filed a suit in the District Court of Lipscomb County against the appellee, Ed Puls, to recover delinquent taxes due and owing by him and to foreclose its tax lien upon out lots 1, 2, 8, and 9, located in the City of Booker. The plaintiff in that case impleaded also Lipscomb County, Ochiltree County, Booker Independent School District, Huntoon Independent School District, and the State of Texas, alleging that each of them also held claims against Puls and his property for delinquent taxes, and prayed that they be cited to enter the suit and set up their respective claims. The State of Texas and the impleaded municipal corporations appeared and presented their respective claims but, although duly cited, Puls failed to appear or file an answer. On March 30, 1943, the case was regularly called and judgment by default was entered against Puls in favor of the plaintiff and the impleaded defendants for the respective amounts due them as taxes, the judgment being for the total sum of $3541.23, and the tax liens were foreclosed. On May 6, 1943, an order of sale was duly issued upon the judgment, placed in the hands of the Sheriff of Lipscomb County, who advertised the out lots for sale on June 1, 1943, at which time they were sold at public auction to the appellant, Earl Clark, for $3600, and a sheriff's deed was immediately executed and delivered to the purchaser upon his payment to the sheriff of the amount called for by his bid. Appellee, Ed Puls, was present at the sale but did not bid. He stated after the sale that the purchaser had bought a lawsuit. The appellee, Cynthia M. Puls, read the notice of the sale published in the newspaper.

On March 16, 1945, the appellee, Cynthia M. Puls, wife of Ed Puls, joined by her husband, filed the instant suit against the appellant, Earl Clark, alleging that she was not a party to the tax suit; that she was a married woman and that prior to the year 1930 she and her husband, Ed Puls, purchased and established their homestead on out lots 1, 2, 8, and 9 in the town of Booker; that they erected thereon a residence and had openly and notoriously used and occupied the same as their homestead at all times since its appropriation as such. They further alleged that the judgment entered in the tax suit of the City of Booker included $930.27 which represented delinquent taxes owing by Ed Puls upon personal property and poll taxes assessed against him for the several years in which the taxes sued for had accrued; that, to that extent, the taxes sued for by the plaintiff and the impleaded defendants did not constitute a lien upon their homestead and, although no lien existed upon their homestead to secure the same, the judgment attempted to foreclose the tax liens for the amount due by Puls on personal property and as poll taxes. They alleged that the tax judgment was therefore void and did not form a legal basis for the order of sale and sheriff's deed. They alleged, on behalf of Cynthia M. Puls, that the appellant was not entitled to be reimbursed any sum paid by him, but in the event, and only in the event, that the court should find or hold that he was entitled to reimbursement she tendered to pay into court, or as the court might direct, any and all sums that would be and are legally chargeable against her said homestead property. The appellees prayed for judgment vacating and setting aside the sheriff's sale and the deed executed by him conveying the property to the appellant, for cancellation of the purported lien of the judgment, declaring the same to be void and of no force and effect as against their homestead property, that all cloud cast upon the title of same by the judgment and the proceedings in the tax suit be vacated and held for naught, and that Cynthia M. Puls be quieted in her title and possession thereof.

Appellant answered by numerous exceptions to the petition, in which, as well as in his answer, he challenged the appellees' suit as being a collateral attack upon a valid judgment of a court of competent jurisdiction, all of which were overruled and denied by the court. He set up his purchase of the property, payment of the amount bid therefor, and the deed executed to him by the Sheriff of Lipscomb County. He alleged further that if personal property taxes and poll taxes were included in the judgment he did not know of it at the time of his purchase; that his bid was a bona fide one; that he had paid for the property the amount of his bid, and was therefore an innocent purchaser for value.

The case was submitted to the court without the intervention of a jury, and at the conclusion of the trial judgment was rendered in favor of the appellees, canceling and annulling the sheriff's sale and deed executed by the sheriff, removing the cloud cast upon the title of appellees thereby, divesting appellant of any title, and investing the same in the appellees, to which appellant excepted and from which he has perfected an appeal to this Court.

A large number of assignments of error are presented in the brief but in the view we take of the case it will not be necessary to discuss them in detail. The case is controlled by two contentions presented by the assignments of error, which are to the effect, first, that the court erred in overruling appellant's special exceptions and in entering judgment against him, because the appellees' suit constituted a collateral attack upon the judgment in the tax suit and the judgment in that cause was not subject to such an attack; and, secondly, that the court erred in overruling his exceptions and rendering judgment against him in favor of the appellees, because Cynthia M. Puls was bound by the judgment rendered against her husband in the tax suit, that she was not a necessary party thereto, and therefore had no right to maintain this suit in the nature of a collateral attack upon the judgment in the former cause.

The statement of facts does not reveal in a plain and satisfactory manner the exact amount of personal property taxes and poll taxes that were included in the tax judgment. The court found, however, that the judgment included poll taxes and taxes upon personal property in a substantial amount and that the tax liens were foreclosed upon the homestead of the appellees for the purpose of paying the personal property taxes and poll taxes as well as the taxes due upon the homestead property. Appellees assert in their pleadings and in their brief that the amount of these items was $930.27 and, since it is not controverted by the appellant, we assume that the judgment included the amount claimed by the appellees.

Appellant contends that this suit constitutes a collateral attack upon the judgment in the tax suit and that such an attack can not be made upon that judgment. He contends further that appellee, Cynthia M. Puls, being the wife of Ed Puls, was not a necessary party to the tax suit and was bound by the judgment. In our opinion, both of these contentions must be sustained.

It has long been the rule in this State that where a court of general jurisdiction, in the exercise of its ordinary judicial functions, renders a judgment in a cause of which it has jurisdiction, the judgment is never void regardless of how erroneous it may appear from the record or otherwise. Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329; Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876; Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66; Newman v. City of El Paso, Tex.Civ.App., 77 S.W.2d 721; Longmire v. Taylor, Tex.Civ.App., 109 S. W.2d 525.

No question is raised as to the authority and power of the District Court of Lipscomb County to entertain jurisdiction and adjudicate the issues presented in the tax suit, nor could such a contention be successfully made, because that court undoubtedly had jurisdiction of every item of indebtedness alleged in the petition and also of the tax liens sought to be enforced. The taxes due by Ed Puls upon personal property and the poll taxes owing by him were not secured by the tax liens which secured the amount of taxes due by him upon his homestead property, and the judgment which foreclosed the tax liens and authorized the sale of the homestead property to pay the entire judgment was erroneous to the extent of the personal property taxes and the poll taxes. Since the court had jurisdiction of the entire cause, however, the error committed in subjecting the property to the payment of more taxes than were due upon the homestead property itself did not render the judgment void, but voidable only. Being voidable and not void, it was subject only to a direct attack, such as a motion for rehearing, an appeal, or perhaps an equitable bill of review. None of these having been appropriated by the defendant in that case, the judgment became final and, although it was erroneous to the extent of the personal property taxes and poll taxes, since it was not void, it cannot be attacked in a collateral proceeding such as this. Washington v. Giles, Tex.Civ.App., 258 S.W. 900, 903.

In the Washington case, supra, it was contended by the appellants that their homestead had been sold, and purchased by the appellee, under an order of sale issued upon a former judgment foreclosing a lien for taxes and that the judgment included attorney's fees and interest which,...