Gibbs v. Scales

• Decision Date: 20 February 1909
• Citation: 118 S.W. 188
• Court: Texas Court of Appeals
• Parties: GIBBS v. SCALES et al.<SMALL><SUP>†</SUP></SMALL>

118 S.W. 188

GIBBS v. SCALES et al.^†

Court of Civil Appeals of Texas.

February 20, 1909.

Rehearing Denied March 13, 1909.

Appeal from District Court, Hartley County; J. N. Browning, Judge.

Action by Mrs. Sallie A. Gibbs against John A. Scales and another. From a judgment for defendants, plaintiff appeals. Affirmed.

James & Yeiser, for appellant. Turner & Boyce and Webb & Joiner, for appellees.

DUNKLIN, J.

This suit was instituted by Mrs. Sallie A. Gibbs against John A. Scales and W. Boyce in the district court of Hartley county to recover the Joseph Welsh survey of 177 acres of land, and from a judgment in favor of the defendants the plaintiff has appealed.

The plaintiff's original petition was in the usual form of trespass to try title. To this petition defendants filed general denial, plea of not guilty, and special answers, in which both defendants pleaded a judgment in favor of the state against the unknown owners of the land in controversy of date May 10, 1899, rendered by the district court of Hartley county, foreclosing a lien for taxes due the state and said county, and a deed of conveyance of date July 4, 1899, executed by the sheriff of said county to defendant W. Boyce under and by virtue of an order of sale issued on said judgment, and defendant Scales further pleaded a deed of conveyance from W. Boyce to himself for a valuable consideration paid to Boyce by Scales. The evidence introduced upon the trial established a regular chain of title to the land from the state down to J. W. Haynes, plaintiff's father, who by will in due form and duly probated devised the land to the plaintiff, and the judgment and deeds of conveyance pleaded by defendants were also established by proof. The judgment was for taxes due the state and county on the property for the years 1892 to 1896, both inclusive. The land was assessed for taxes for the year 1891 on the nonresident tax rolls of the county in the name of plaintiff's husband, Barnett Gibbs, who then resided in Dallas county and who died in 1896, and Dallas county was the place of plaintiff's residence at the date of the institution of the suit and at the date of the judgment. W. Boyce was the county attorney of Hartley county, and in that official capacity represented the plaintiff in the institution of the suit and in its prosecution to final judgment. He was likewise county attorney of Hartley county when he purchased the land under the foreclosure sale by the sheriff. The judgment was upon service by publication, was regular in all respects, specifically reciting that citation had been duly had by publication, and decreed a lien with foreclosure thereof for the taxes due for the years 1892 to 1896, inclusive, and was in favor of the state against all persons (said persons being unknown) owning, having, or claiming any interest in the land, and directed the clerk to issue an order of sale to sell the same for the purpose of satisfying said taxes and costs of suit, subject to the right of the owner to redeem the same within two years. The affidavit for the issuance of the citation was made by W. Boyce as attorney for the state, was in statutory form, affiant stating therein that the owners of the land in controversy were unknown to him, and after inquiry could not be ascertained. By supplemental petition duly filed plaintiff alleged that this affidavit of the county attorney was fraudulently made, and that by reason thereof the judgment of foreclosure was void. The trial court sustained general and special exceptions to this pleading on the ground that it was a collateral attack on the judgment, and in this ruling we think there was no error. This was clearly a collateral attack upon the judgment, based upon alleged facts dehors the judgment and all other records in the suit, which could not be sustained in view of the affidavit for citation by publication and recitals of service in the judgment, above noted. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Kenson v. Gage, 34 Tex. Civ. App. 547, 79 S. W. 605; Scudder v. Cox, 35 Tex. Civ. App. 416, 80 S. W. 872. The evidence failing to show that appellant was in possession of the land when the foreclosure suit was filed, and when citation was issued therein, the cases of Hollywood v. Wellhausen, 28 Tex. Civ. App. 541, 68 S. W. 329, and Bingham v. Matthews, 39 Tex. Civ. App. 41, 86 S. W. 781, relied on by her, are therefore not applicable. Other authorities cited by appellant, such as Babcock v. Wolffarth, 35 Tex. Civ. App. 512, 80 S. W. 642, Stoneman v. Bilby, 43 Tex. Civ. App. 293, 96 S. W. 51, and Earnest v. Glaser, 32 Tex. Civ. App. 378, 74 S. W. 605, are applicable only in cases where the judgment assailed fails to recite service of citation.

Appellant calls our attention to the decision of our Supreme Court in Martin v. Burns, Walker & Co., 80 Tex. 679, 16 S. W. 1072, and Fowler v. Simpson, 79 Tex. 617, 15 S. W. 682, 23 Am. St. Rep. 370, to the effect that, when the judgment recites the precise character of service upon which it is rendered, then proof is admissible to show that the service was not as required by law; and upon these authorities the contention is made that, in view of the recital in the judgment of foreclosure in question that citation was by publication, the trial court erred in...