Cowan v. Mason

• Decision Date: 04 March 1968
• Docket Number: No. 7767,7767
• Parties: R. T. COWAN et al., Appellants, v. T. B. MASON et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 96

428 S.W.2d 96

R. T. COWAN et al., Appellants, v. T. B. MASON et al., Appellees.

No. 7767.

Court of Civil Appeals of Texas Amarillo.

March 4, 1968.

Rehearing Denied April 15, 1968.

Thomas Braley, Pampa, Stubbeman, McRea, Sealy & Laughlin, W. B. Browder, Jr., and Milton L. Bankston, Midland, of counsel, for appellants.

Bill W. Waters and Malcolm C. Douglass, Pampa, Guy S. Hardin, Shamrock, for appellees.

CHAPMAN, Justice.

This is in lieu of our opinion announced on January 8, 1968. The appeal is by plaintiffs-appellants, R. T. Cowan and others, including Sarah Byrens, seeking relief by way of an equitable bill of review from a judgment in favor of T. B. Mason and others, based upon an instructed verdict for defendants-appellees.

The suit was instituted by appellants on behalf of themselves and more than 500 parties as members of a class seeking to set aside a judgment rendered against them on October 25, 1945, in Cause No. 3625 in Wheeler County, Texas, styled W. J. Johnston et al. v. E. L. Chapman et al. Instruments introduced into the record for the purpose of Bills of Exception (the court having sustained objections to their introduction for any other purpose) show a deed dated January 26, 1928, from W. J. Johnston and wife, Elizabeth Johnston, to Harry Byrens of a 1/16th mineral interest in approximately four sections of land in Wheeler County, Texas. On the same day Byrens conveyed a 1/32nd mineral interest in such property to Lucky Johnston Royalty, Harry Byrens, Trustee, which instrument was recorded on January 28, 1928.

The record also shows a correction deed dated February 10, 1928, from W. J. Johnston and wife, Elizabeth Johnston, to Harry Byrens, which referred to the January 26, 1928, Deed from the Johnstons to Byrens and corrected the grant of a 1/16th mineral interest by conveying a 1/2 mineral interest to Byrens in said land. This instrument was recorded on February 20, 1928. Subsequent to the conveyance just described many persons and entities acquired interests in the property, including R. T. Cowan, G. S. Anderson, Monarch Oil and Royalty Co., Hendricks Ranch Royalties and Sarah Byrens, the latter by virtue of being sole devisee under the will of Harry Byrens duly and legally probated in Los Angeles County, California following his death in 1940.

On August 29, 1945, in Cause No. 3625 in Wheeler County, Texas W. J. Johnston, Elizabeth Johnston and T. B. Mason filed suit in trespass to try title seeking cancellation of the 1928 Deeds from the Johnstons to Byrens, naming more than 500 persons and entities as parties defendant and alleging said deeds were forgeries. On the same day T. B. Mason, a stranger to the Harry Byrens' title, made an affidavit '* * * That the residences of each of the defendants are unknown to each of the plaintiffs herein.' ¹ Citation was issued on the Mason affidavit and was properly published in the Wheeler Times for the periods required. On October 25, 1945, judgment was entered in the District Court of Wheeler County against all the defendants, reciting, inter alia, '* * * the defendants, though duly and legally cited by publication herein, came not * * *.'

The Mason affidavit (and the only one upon which citation by publication was issued) did not affirm that the names of the heirs of the individual defendants nor the stockholders of the defunct corporations named in their petition were unknown to affiant, as provided for service by publication under Rule 111 ² and Art. 2040 as it still exists since partly repealed by Acts 1939, 46th Leg ., p. 201, Sec. 1. Neither did the affiant affirm that any of the defendants were non-residents of the state, nor were absent from the state nor were transient persons, as provided for service by publication under original Rule 109 before the amendment thereto which became effective February 1, 1946.

Judgment was rendered in the No. 3625 case in Wheeler County on October 29, 1945, against the more than 500 individuals, (including Harry Byrens) five corporations, and '* * * the unknown heirs and legal representatives of the named parties,' even though the affidavit upon which citation by publication was issued did not mention the unknown heirs and legal representatives of the individual defendants, the names of the stockholders of the alleged defunct corporations, nor any of the others mentioned in the statutes and rules above named except to say '* * * that the residents of each of the defendants are unknown to each of the plaintiffs herein.'

Rule 111 in effect at the time of the 1945 suit provides: 'If the plaintiff * * * shall make oath that the names of the heirs or stockholders against whom an action is authorized by Art. 2040 of the Revised Civil Statutes of Texas, 1925 ³, are unknown to the affiant, the clerk shall issue a citation for service by publication.' Therefore, suits such as the 1945 action, No. 3625, were authorized if the article and statute were followed. They were not. For example, Harry Byrens died in 1940 and his wife, Sarah Byrens, was the sole beneficiary under the will of her husband and she was not named as a defendant in the suit . Neither were stockholders of defunct corporations mentioned in the affidavit upon which citation by publication was issued.

We believe it is not possible for this court to arrive at an equitable and just disposition of this case without a reversal and remand if the law will permit. Appellants' pleadings assert in effect that the two deeds of W. J. Johnston and Elizabeth Johnston to Harry Byrens in January and February respectively of 1928 were acknowledged under all the formalities and with all the solemnities required by law. Appellants say if they had been personally served each of them would have been able to assert and prosecute a valid and meritorious defense to the No. 3625 case in Wheeler County, by showing that a respected and well-known banker in Pampa acknowledged the first deed and a respected and well-known lawyer in Miami acknowledged the second deed; that each of them were alive in 1945 and could have testified that the deeds set aside in the 1945 judgment as forgeries were actually executed by the Johnstons to Harry Byrens.

In the early days of the judicial system of this state our Supreme Court in considering constructive service held '* * * plaintiffs should strictly comply with the rules of procedure before judgment. Notice by publication is, at best, but a miserable substitute for personal service.' Edrington v. Allsbrooks, 21 Tex. 186. See also Hopkins v. Cain, 105 Tex. 591, 143 S.W. 1145 (1912); Parker v. Scobee, 36 S.W.2d 303 (Tex.Civ.App.--Waco, 1931, n.w.h.) and cases there cited on the point; South Texas Development Co. v. Martwick, 328 S.W.2d 230 (Tex.Civ.App.--Waco, 1959). In the latter case the court said '* * * when a statute provides for constructive service in a given case the method prescribed is exclusive and admits of no substitute.'

In Underwood v. Pigman, 32 S.W.2d 1102 (Tex.Com.App., 1930, Sec. B) a county attorney made affidavit upon which citation by publication was issued that the residence of G. M. Underwood and Unknown parties could not be ascertained. The court held that G. M. Underwood being dead at the time the suit was instituted could not have been a party defendant, so his lawful heirs at law were necessary parties defendant. The Court said the lawful heirs were his wife, P. A. Underwood and '* * * these plaintiffs in error'. The Court also stated '* * * it was clearly and unmistakably the duty of the county attorney of Ward County, in order to secure a valid citation by publication, * * * to have filed a petition against the heirs of G. M. Underwood, alleging their names to be unknown to him, describing them as the heirs of G. M. Underwood, and to have made oath that the names of such heirs were unknown to the affiant.'

The Court further held '* * * the law visited the state of Texas and her authorized agent, the county attorney of Ward County, * * * with notice of the contents of said deed, which recited, among other things, that G. M. Underwood, the grantee therein, resided in Ward County, Tex.', citing Art. 6646. The court then said: '* * * in other words, these plaintiffs in error were entitled to show, as they did, that they were proper persons to be made parties defendant * * * and that they were entitled to be served as such defendants with process, in such suit to which they were parties defendant, none of which was done.' Neither was Sarah Byrens made a party defendant nor cited constructively or otherwise.

The affidavit upon which citation by publication was issued also failed to comply with the method provided in 1945 for service upon domestic corporations, Art. 2029. At the time of the attempted service in the 1945 case Hendricks Ranch Royalty and Monarch Oil & Royalty Corporation existed under the laws of this state with their principal offices within the state. We know of no proper service which could be had upon them at that time except as provided in the last named article. Such service was not even attempted. Under the cases cited above as to the requirement for strict compliance with the procedural rules concerning constructive service, these domestic corporations simply were not served.

The record shows R. T. Cowan was a resident of Texas at the time of the affidavit made by Mason and that the deed by which he acquired an interest in some of the subject property was on record in Wheeler County and contained his correct address in Fort Worth. Under the authority of Underwood v. Pigman, supra, both the plaintiffs and their attorneys in the 1945 suit were on notice of the contents of the duly recorded deeds which recited their residences, the article cited therefor being 6646. In discussing Art. 6848 (predecessor to Art. 6646 in the exact same language) our Supreme preme Court in Leonard v. Benford Lumber Company, 110 Tex. 83, 216 S.W. 382 (1919) has held that '* * * our statutes...