Crane v. Blum

• Decision Date: 28 February 1882
• Docket Number: Case No. 1463.
• Court: Texas Supreme Court
• Parties: M. M. CRANE v. LEON & H. BLUM.

56 Tex. 325

M. M. CRANE

v.LEON & H. BLUM.

Case No. 1463.

Supreme Court of Texas.

Feb. 28, 1882.

APPEAL from Johnson. Tried below before the Hon. Jo. Abbott.

The opinion states the case.

D. T. Bledsoe and L. B. Davis, for appellant.

Scott & Levi, for appellees.

I. The court erred in holding that the judgment rendered by the county court of Johnson county, Texas, in favor of Edward and John Martin against E. & I. Stone, under and by virtue of which the land in controversy was sold and purchased by appellant, M. M. Crane, is absolutely void.

II. The district court of Johnson county, at the date of the writs of citation and attachment under which appellant claims in this suit, had no jurisdiction of the case in which said writs were issued, and the same were void, as also the judgment founded on said writs, and appellant acquired no title thereunder to the lands in controversy. Ordinance of Constitutional Convention of 1875, sec. 1, submitting new constitution to vote of the people; Const. of 1876, art. V, secs. 8, 16, 27; Crane v. Stone, decided by Commission of Appeals, Tyler term, 1881; Hardeman v. Morgan, 48 Tex., 106; Drake on Attachments, 85, 86, 87, 87a, 87b; Freeman on Judgments, § 117.

III. The alias citation to E. Stone was issued before the organization of the county court, which had exclusive jurisdiction to hear the cause. It was returnable to the district court, which had no jurisdiction to render judgment, and in which, therefore, the defendant could not be required to appear and plead, and was utterly void (a) as an original summons, (b) and a fortiori as the basis of acquiring constructive jurisdiction by judicial attachment. Pasch. Dig., art. 1431; Covington v. Burleson, 28 Tex., 370;Neill v. Brown, 11 Tex., 17; Drake on Attachments, secs. 85, 86, 87, 87a, 87b.

IV. The writ of citation issued to the defendant, I. Stone, in the suit of E. & J. Martin v. E. & I. Stone, was void because not under seal, and the judgment rendered thereon was therefore void also. Pasch. Dig., art. 1431; Frost v. Schlumpfer, 2 Tex., 422.

V. The judgment in the suit of E. & J. Martin v. E. & I. Stone, being void as to I. Stone for want of citation, is void as to E. Stone also because it is indivisible. Hulme v. Janes, 6 Tex., 242;Long v. Garrett, 45 Tex., 401.

VI. The judgment of the county court of Johnson county in the case of E. & J. Martin v. E. & I. Stone, being void for want of jurisdiction of the parties, derived no additional force from the affirmance by the court of appeals, but must be treated as a nullity notwithstanding. Horan v. Wahrenberger, 9 Tex., 319;Able v. Bloomfield, 6 Tex., 264; Drake on Attachments, 87a; Freeman on Judgments, § 117.

STAYTON, ASSOCIATE JUSTICE.

It is admitted by both parties that the land in controversy formerly belonged to E. Stone, under whom they each claim title.

Appellees claim to deraign title under a judgment rendered in their favor against E. & I. Stone on the 14th of April, 1877, under which execution issued and sale was made of the land on the first Tuesday in June, 1877, at which they became the purchasers.

Appellant deraigns title through a judgment rendered in the county court for Johnson county on the 19th of June, 1876, in favor of E. & J. Martin and against E. & I. Stone, under which an execution and order of sale issued on the 15th of August, 1876, under which the land was sold on the first Tuesday in September, 1876, at which appellant became the purchaser.

On the 5th of February, 1878, E. & I. Stone sued out a writ of error by which the judgment rendered against them in favor of E. & J. Martin was taken to the court of appeals, which upon hearing affirmed the judgment of the county court upon the merits.

The suit in favor of E. & J. Martin was instituted in the district court for Johnson county in February, 1876, to recover $383.81 on a note executed by E. & I. Stone, and citation issued therein on the 19th February, 1876, which was served on I. Stone and returned not executed as to E. Stone, April 22, 1876.

On 3d of June, 1876, an alias citation to E. Stone was issued by the clerk of the district court for Johnson county, returnable to the June term of that court, and this was returned on the 5th of June, 1876, showing that the defendant E. Stone was not found in the county; after which the clerk of the district court for Johnson county issued a judicial attachment to enforce the attendance of E. Stone, and the same was levied on the 8th of June, 1876, on the lands in controversy as the property of E. Stone. The cause of E. & J. Martin v. E. & I. Stone was transferred to the county court of Johnson county by the district court of that county at the June term of that court for the year 1876.

The judgment in favor of E. & J. Martin was by default, and on the same day the judgment was rendered E. & I. Stone filed a motion to set aside the judgment, alleging their ignorance of the service of the attachment, and on the next day they filed a motion to quash the attachment upon various grounds, both of which motions were overruled on the 20th of July, 1876. It seems that the citation under which service was made upon I. Stone was without seal.

This suit was brought by the appellees to recover the possession of the land and to remove cloud from their title, and there was a judgment rendered to that effect.

It is claimed by the appellees that the judgment under which the appellant claims title is void for the reason that the judicial attachment was issued by the clerk of the district court after the adoption of the present constitution, and was made returnable to that court; and for the further reason that the citation under which service was had upon I. Stone was not under seal.

The question of the validity of the process under which E. & I. Stone were brought into the county court of Johnson county was passed upon by the court of appeals upon the writ of error presented by them, and was held to be valid, and it is neither necessary nor proper that we should...