Estey & Camp v. Williams

• Citation: 133 S.W. 470
• Parties: ESTEY & CAMP et al. v. WILLIAMS.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 14 December 1910
• Court: Texas Court of Appeals

133 S.W. 470

ESTEY & CAMP et al. v. WILLIAMS.^†

Court of Civil Appeals of Texas.

December 14, 1910.

Rehearing Denied January 11, 1911.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Action by H. G. Williams against Estey & Camp and others. Judgment for plaintiff, and defendants appeal. Reversed, and judgment rendered.

Frank M. Brantly and James M. Robertson, for appellants. E. B. Robertson and Cureton & Cureton, for appellee.

RICE, J.

This suit was brought by appellee against appellants to remove cloud from title to two tracts of land situated in Bosque county, cast thereon by the record of two abstracts of judgments duly recorded and indexed in said county. Plaintiff alleged that during the year 1898 appellants brought two suits in the justice court of precinct No. 1, Tarrant county, against John Luther, in each of which they recovered judgments against said Luther, one for $175.50, with costs of suit, and the other for $226, with costs, each bearing 10 per cent. interest from date of rendition thereof, November 28, 1898. That thereafter, on the 14th of March, 1908, abstracts of said judgments were by them caused to be duly filed, recorded, and indexed in the office of the county clerk of said Bosque county; that subsequent to the filing of said abstracts, to wit, in November, 1908, plaintiff purchased said tracts of land from said John Luther, defendant in said judgments; that the same are a cloud upon plaintiff's said title and hinder the sale and transfer thereof; that both of said judgments are void, because no service was ever had on plaintiff's vendor, defendant Luther, in said justice court cases, and prayed for judgment removing said cloud from the said title. Appellants answered by general and special exception, pleas of not guilty, general denial, and by way of cross-bill averred that said judgments are valid and subsisting, and that they were duly rendered and obtained in favor of said Estey & Camp against said John Luther, the defendant therein, the vendor of appellee; and that the same were duly abstracted in said Bosque county, as alleged by appellee, prior to the latter's purchase of the land, and that if appellee ever acquired any interest or title to said land, he acquired same through said purported conveyance from said Luther, the defendant in said judgments, and with full notice, both actual and constructive, of the existence thereof, and of the record of said abstracts thereof in said Bosque county, and subject to the liens created thereby on said lands, and that, by reason of the premises, appellants have and are entitled to valid and subsisting judgment liens in the amounts of said two respective judgments, with costs and accrued interest, as per the terms thereof, as against said lands, superior to any claim or interest of appellee thereto, and prayed for a foreclosure of the same. The case was tried before the court without a jury, and judgment rendered in favor of appellee, from which this appeal is prosecuted.

The principal question raised by this appeal, as presented by the first three assignments, is whether or not the trial court ruled correctly in admitting testimony de hors the record of the two justice court judgments, seeking to impeach the verity thereof. The bill of exception shows that, over objection of appellants, John Luther, the defendant in said justice court judgments, was allowed to testify that he never had any notice that any suit had been filed against him in the justice court of Tarrant county by Estey & Camp, and that he was never served with citation in either of said causes, and that he did not know of the rendition of said judgments until some time in 1908, when he was informed thereof by the sheriff of Bosque county, who then had executions in his hands, issued thereon against him. The constable, at the time that the citations were supposed to have been served upon him, testified, over objection of appellants, that he had no personal recollection of ever having served said citations, but admitted, however, that the returns thereon were made by him. Copies of said two justice court judgments were introduced in evidence, as well as the citations upon which they were rendered, together with the abstract of said judgments, duly filed, recorded, and indexed in Bosque county, as alleged in the pleading; and each of said judgments recited that the defendant, John Luther, although duly cited, had made default, and the returns upon said citations showed that said Luther was duly served in person. Appellants by their proposition contend that the evidence above mentioned, admitted over their objection, was not admissible, for the reason that it was sought thereby to impeach and attack, in a collateral proceeding, the validity of the judgments in question, by showing by parol testimony de hors the record, that defendant had not been served with process or duly cited therein, in the face of the recitals and adjudication in said judgments of the fact that he had been duly cited, because the same imported absolute verity, and the validity thereof could not be impeached in such manner.

Appellee, while admitting that said judgments could not be impeached in a collateral proceeding, insisted that the present was in the nature of a direct attack upon said judgments; and hence he was entitled to show by parol that no service was ever had upon the defendant therein, and that said judgments were therefore void. So that we are met upon the threshhold of this inquiry with the question as to whether or not the attack in the present instance upon the justice court judgments is direct or collateral. If the former, then it was competent to show by parol testimony that the defendant in said judgments was never served with process, and that the court had no power to render the same, and that the same were therefore void. But if such attack is collateral, then the rule seems to be well settled that judgments of courts of general jurisdiction over the subject-matter and parties thereto, where service of citation appears from the face thereof, cannot be assailed in a collateral proceeding, but in such case they import absolute verity, and are not subject to impeachment. See Heck v. Martin, 75 Tex. 471, 13 S. W. 51, 16 Am. St. Rep. 915; Williams v. Haynes, 77 Tex. 283, 13 S. W. 1029, 19 Am. St. Rep. 752; Crawford v. McDonald, 88 Tex. 631, 33 S. W. 325. "And it seems to be equally as well recognized in this state," says Justice Collard, in Heck v. Martin, supra, "that justice courts are, within their defined limits, tribunals of general jurisdiction, and as such, all reasonable presumptions should be indulged in support of their judgments." See, also, Holmes v. Baker, 67 Tex. 107, 2 S. W. 452; Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730. "For," as said in Murchison v. White, 54 Tex. 78, "such questions in a collateral proceeding should be tried by the record itself." Freeman on Judgments, §§ 132-134; Carpentier v. Oakland, 30 Cal. 439. With reference to the presumptions that should obtain in collateral attacks upon justice court judgments, see, also, Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876; Burns v. Barker, 31 Tex. Civ. App. 82, 71 S. W. 328.

In Clayton v. Hurt, supra, Justice Denman says: "The language of the Constitution that the justices of the peace shall have jurisdiction, etc., confers upon them the general judicial powers of the government over the subjects therein specified, subject to the limitations therein prescribed, and such jurisdiction is as general and exclusive as is that of the various other courts mentioned in the Constitution over the subjects committed to them. The fact that their judgments are subject to revision in the various forms prescribed by law, does not tend to show that they are courts of limited or special jurisdiction, for such judgments can be revised or annulled only in the instances and in the manner prescribed by the Constitution in fixing the jurisdiction of other courts, and, until so revised or amended, are of as much binding force as the judgments of any other court."

As to what constitutes a collateral attack, it is said in Cyc. vol. 23, p. 1062, that "the term `collateral,' as used in this connection, is opposed to `direct.' If an action or proceeding is brought for the very purpose of impeaching or overturning the judgment, it is a direct attack upon it. Such is a motion or other proceeding to vacate, annul, cancel, or set aside the judgment, or any proceeding to review it in an appellate court, whether by appeal, error, or certiorari, or bill of review or, under some circumstances, an action to quiet title. On the other hand, if the action or proceeding has an independent purpose, and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral. This is the case when the proceeding is founded upon the judgment in question, or upon its incidents or consequences as a judgment, or where the judgment forms a part of plaintiff's title or of the evidence by which his claim is supported." See note 68, p. 1064, Id. See, also, Brooks v. Powell, 29 S. W. 809, and authorities there cited; also Smith v. Perkins, 81 Tex. 152, 16 S. W. 805, 26 Am. St. Rep. 794. To the same effect is Black on Judgments, vol. 1, § 252. See, also, Vanfleet on Collateral Attack, §§ 2 and 3; Freeman on Judgments, § —.

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