Fishbein v. Thornton

• Decision Date: 31 March 1952
• Docket Number: No. 15084,15084
• Citation: 247 S.W.2d 404
• Parties: FISHBEIN v. THORNTON et al.
• Court: Texas Court of Appeals

Page 404

247 S.W.2d 404

FISHBEIN v. THORNTON et al.

No. 15084.

Court of Civil Appeals of Texas, Dallas.

March 31, 1952.

Edward M. Burke, Chicago, Ill., Scurry, Scurry & Pace, Dallas, for relator.

Herbert K. Hyde, Oklahoma City, Okl., James Martin, Thompson, Knight, Wright & Simmons and Pinkney Grissom, Dallas, for respondents.

CRAMER, Justice.

The above matter having been submitted March 31, 1952, at 10:00 A.M., after hearing argument, the majority of the Court denied the application of Morris Fishbein, relator, for leave to file an application for a writ of prohibition, or in the alternative for a writ of mandamus. Mr. BOND, Chief Justice, in his opinion filed March 31, 1952, gave a statement of the history leading up to the filing of the application for permission to file petition for writ of prohibition, or mandamus, and it will not be repeated.

The record before us shows, in addition to that stated in Judge BOND'S opinion, that after the State court petition was filed in the 44th District Court of Dallas County, one of the defendants in said cause, Morris Fishbein, on December 22, 1950, filed in the action of Harry Hoxsey his plea to the jurisdiction, and subject thereto certain motions, exceptions and general answer; that on December 28, 1951 relator Fishbein's plea to the jurisdiction of the District Court was heard by the trial judge and overruled. It also appears from the application for the writ, tendered with the motion to file the same, that such cause is set for trial in the 44th District Court of Dallas County on April 2, 1952. The only material question raised in the application for the writ of prohibition and/or mandamus is the jurisdiction of the 44th District Court of Dallas County to try the cause of action alleged by Hoxsey against Dr. Fishbein. Our Supreme Court in the case of York v. State, 73 Tex. 651, 11 S.W. 869, and since then, has uniformly held that under our Texas Practice any appearance by the defendant in a cause in a Texas State Court is sufficient to give such court jurisdiction, and that a written answer for the purpose of pleading to the jurisdiction of the court is a voluntary appearance which brings the defendant before the court and subjects him to its jurisdiction. An answer, in our practice, is as follows:

Texas Rules of Civil Procedure, rule 85: 'The original answer may consist of pleas of privilege, to the jurisdiction, in abatement, or any other dilatory pleas; of special exceptions(,) of general denial, and any defense by way of avoidance or estoppel, and it may present a cross-action, which to that extent will place defendant in the attitude of a plaintiff. Matters in avoidance and estoppel may be stated together, or in several special pleas, each presenting a distinct defense, and numbered so as to admit of separate issues to be formed on them.'

Under such Rule, a plea to the jurisdiction is a part of the answer. The U. S. Supreme Court has held such Rule constitutional. In York v. State of Texas, 137 U.S. 15, 11 S.Ct. 9, 10, 34 L.Ed. 604, in denying an attack upon such Rule, that Court held:

'It was conceded by the district and the supreme courts that the service upon the defendant in St. Louis was a nullity, and gave the district court no jurisdiction; but it was held that, under the peculiar statutes of the state of Texas, the appearance for the purpose of pleading to the jurisdiction was a voluntary appearance, which brought the defendant into court. * * * The difference between the present rule in Texas and elsewhere is simply this: Elsewhere the defendant may obtain the judgment of the court upon the sufficiency of the service without submitting himself to its jurisdiction; in Texas, by its statute, if he asks the court to determine any question, even that of service, he submits himself wholly to its jurisdiction. Elsewhere he gets an opinion of the court before deciding on his own action; in Texas he takes all the risk himself. If the service be in fact insufficient, all subsequent proceedings, including the formal entry of judgment, are void; if sufficient, they are valid. And the question is whether, under the constitution of the United States, the defendant has an inviolable right to have this question of the sufficiency of the service decided in the first instance and alone. The fourteenth amendment is relied upon as invalidating such legislation. That forbids a state to 'deprive any person of life, liberty, or property without due process of law.' And the proposition is that the denial of a right to be heard before judgment simply as to the sufficiency of the service operates to deprive the defendant of liberty or property. But the mere entry of a judgment for money, which is void for want of proper service, touches neither. It is only when process is issued thereon, or the judgment is sought to be enforced, that liberty or property is in present danger. If at that time of immediate attack protection is afforded, the substantial guaranty of the amendment is preserved, and there is no just cause of complaint. The state has full power over remedies and procedure in its own courts, and can make any order it pleases in respect thereto, provided that substance of right is secured without unreasonable burden to parties and litigants. Antoni v. Greenhow, 107 U.S. 769, 2 S.Ct. 91 (27 L.Ed. 468). It certainly is more convenient that a defendant be permitted to object to the service, and raise the question of jurisdiction, in the first instance, in the court in which suit is pending. But mere convenience is not substance of right. If the defendant had taken no notice of this suit, and judgment had been formally entered upon such insufficient service, and under process thereon his property, real or personal, had been seized or threatened with seizure, he could by original action have enjoined the process, and protected the possession of his property. If the judgment had been pleaded as defensive to any action brought by him, he would have been free to deny its validity. There is nothing in the opinion of the supreme court or in any of the statutes of the state of which we have been advised gainsaying this right. Can it be held, therefore, that legislation simply forbidding the defendant to come into court, and challenge the validity of service upon him in a personal action, without surrendering himself to the jurisdiction of the court, but which does not attempt to restrain him from fully protecting his person, his property, and his rights against any attempt to enforce a judgment rendered without due service of process, and therefore void, deprives him of liberty or property, within the prohibition of the fourteenth amendment? We think not. The judgment is affirmed.'

The defendant, Fishbein, when he filed his answer, submitted himself to the jurisdiction of the 44th District Court which court now has jurisdiction. See also Hughes v. Hughes, Tex.Civ.App., 221 S.W.2d 1003.

The judgment of the District Court overruling the plea to the jurisdiction was interlocutory and not appealable. This Court therefore has no jurisdiction to issue a writ of prohibition or mandamus as prayed for. Texas Constitution, Art. 5, sec. 6, Vernon's Ann.St. The motion is denied.

BOND, C. J., having amended his original opinion, now joins the majority in the overruling of such motion.

BOND, Chief Justice (concurring).

Relator Morris Fishbein has presented motion for leave to file application for writ of prohibition, or, in the alternative, for writ of mandamus. A brief history leading up to this controversy is reflected from relator's application will be enlightening as to the issues here presented.

On September 27, 1948 Harry M. Hoxsey filed suit in the 44th District Court in Dallas County, Texas (No. 26, 139-B) against Morris Fishbein, William Engle, W. R. Hearst, Jr., American Weekly, Hearst Consolidated Publications, Inc., and American Medical Association, seeking to recover damages for libelous publication. That suit was removed to the U. S. District Court at Dallas. A trial to the merits was had on March 16, 1949 only against the Hearst Publications, a nonsuit having been taken against the other defendants, they not having been served with citation. On March 18, 1949 judgment was entered dismissing Fishbein, Engle and certain other named defendants, without prejudice, and in favor of plaintiff Hoxsey against Hearst Consolidated Publications, Inc., for $2, Hoxsey v. Fishbein, D.C., 83 F.Supp. 282, which judgment was paid and the plaintiff Hoxsey executed a full and complete satisfaction and discharge of that judgment.

While the cause was being tried in Federal Court, on March 18, 1949, Fishbein came to Dallas at the request of the defendants for the sole and only purpose of testifying in such suit. On arrival in Dallas he went directly to a hotel, and on the next morning he was served with a subpoena to appear as a witness to testify on behalf of the defendants. After breakfast, he went directly to the office of the attorneys for defendants, where the remained until going to the Federal Court in response to the subpoena. He remained outside the door of the courtroom until called to testify, and after finishing his testimony walked out of the courtroom, and as he did so was served with citation issued out of the 44th District Court of Dallas County in suit entitled Harry M. Hoxsey v. Morris Fishbein, No. 31,011-B, which had theretofore been filed in said Court on March 18, 1949,-same being the identical suit filed in the Federal Court. Immediately after the citation had been served, Fishbein went to his hotel, checked out, and en route to depart by airplane for Chicago, stopped to see a friend who was ill.

On March 22, 1949 Hoxsey amended his petition in the suit filed in the District Court and made Millard Heath, a resident citizen of Dallas County, Texas, a party defendant; whereupon Fishbein filed a petition for removal to the U. S. District Court, which, on...