Gibson v. Oppenheimer

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Gibson v. Oppenheimer, 154 S.W. 694 (Tex. App. 1913)
• Decision Date: 12 February 1913
• Parties: GIBSON et al. v. OPPENHEIMER et al.

154 S.W. 694

GIBSON et al. v. OPPENHEIMER et al.

Court of Civil Appeals of Texas. San Antonio.

February 12, 1913.

Rehearing Denied March 5, 1913.

Appeal from District Court, La Salle County; J. F. Mullally, Judge.

Trespass to try title by Rowena Gibson and others against Daniel Oppenheimer and others. From the judgment, plaintiffs Gibson and others appeal. Partly affirmed, and partly reversed and remanded.

Love & Rouse, of Carrizo Springs, for appellants. Covey C. Thomas, of Cotulla, and E. Pendleton Lipscomb and Shook & Vander-Hoeven, both of San Antonio, for appellees.

FLY, C. J.

This is an action of trespass to try title, instituted by appellants, Mrs. Rowena Gibson and husband, Thomas Gibson, and Mrs. Belle Eardley, joined by her husband, W. N. Eardley, against appellees, Daniel Oppenheimer, Adelaide Oppenheimer, Hattie O. Lassner and her husband, Sigmund Lassner, Lilly Oppenheimer, Irwin Oppenheimer, Lottie O. Rouff and her husband, Seymour Rouff, to recover two tracts or parcels of land, one containing 10, and the other 15, acres. It was alleged that the appellants reside in Dimmit county, Tex.; that Mrs. Gibson was the wife of Thomas Coble, deceased, after whose death she married Thomas Gibson; that Mrs. Eardley is the daughter and only child of Thomas Gibson; that Coble died in 1889, and at his death was the owner in fee-simple title of the land sued for; and that the appellants are his only heirs, and as such heirs are the owners of the land. Appellees pleaded not guilty and limitations of three, five, and ten years, and further alleged that on May 4, 1897, D. & A. Oppenheimer recovered a judgment against appellants in the district court of La Salle county for $310, with interest, and foreclosure of a vendor's lien on the land in controversy, and on July 6, 1897, bought, at sheriff's sale, the 15-acre tract for $110, and the 10-acre tract for $50, which amounts were credited on the judgment; that, at the time the judgment was rendered, appellants lived in Dimmit county, Tex.; that service was obtained by publication; and that more than 14 years had elapsed since the judgment was rendered, and they pleaded two and four years' limitation against the action.

The cause was tried by jury, being submitted on special issues as to limitation alone; and they answered in a way to justify a judgment for appellees, as against both appellants, on five and ten years' limitation, if the infancy of Mrs. Eardley did not protect her. The court found as facts that Mrs. Eardley was a minor at the time the judgment was rendered and when she married Eardley on February 22, 1906, and reached the age of 21 in July, 1910; that appellees had a vendor's lien on the 15-acre tract, which they foreclosed on May 4, 1897, against the unknown heirs of Thomas Coble in the district court of La Salle county, and that they bought the interest of Mrs. Eardley therein at a sale under the judgment, and thereby became the owners of that interest; that appellees, during their possession of the land, used it for stock-raising purposes. The court, upon the special verdict and his conclusions of fact, rendered judgment for appellees against all of the appellants for the 15-acre tract of land, and for an undivided one-half of the land of the 10-acre tract, as against all of the appellants and in favor of Mrs. Eardley for the other one-half of the 10-acre tract.

The first and second assignments assail the action of the court in admitting in evidence the judgment in favor of D. & A. Oppenheimer v. Unknown Heirs of Thomas Coble, and sheriff's deed executed thereunder. There is no such statement under the assignments as is contemplated by rule 31 (142 S. W. xiii) for Courts of Civil Appeals. There is really no statement, but merely references to the bills of exception and the statement of facts. It has been often held that such statements are not sufficient, and that the assignments, with only such statements, should not be considered. Bayne v. Denny, 21 Tex. Civ. App. 435, 52 S. W. 985; Railway v. Olds, 112 S. W. 787; Vann v. Denson, 56 Tex. Civ. App. 220, 120 S. W. 1020; Griffin v. State, 147 S. W. 328. The facts are stated, however, in an argument which follows the propositions of law; and in view of that fact the assignments are considered, although the rules have been disregarded.

It is provided in article 1875, R. S. 1911, former number 1236, that "where any property of any kind in this state may have been granted, or may have accrued to the heirs, as such, of any deceased person, any party having a claim against them relative to such property, if their names be unknown to him, may bring his action against them, their heirs or legal representatives, describing them as the heirs of such ancestor, naming him; and if the plaintiff, his agent or attorney, shall at the time of instituting the suit, or any time during its progress, make oath that the names of such heirs are unknown to the affiant, the clerk shall issue a citation for such heirs, addressed to the sheriff or any constable of the county in which the suit is pending." It is clear that appellees had a claim against the unknown heirs of Thomas Coble, deceased, relative to the 15 acres of land upon which the former held notes given by Thomas Coble for the purchase money of the land, and to secure which a vendor's lien had been retained. It is agreed by the parties that the law was strictly complied with in obtaining the judgment against the unknown heirs of Thomas Coble, and that the 15 acres of land was duly sold by the sheriff under an order of sale, issued by virtue of the foreclosure of vendor's lien, and that the 15 acres of land was bought by appellees. Such being the state of the record, the sale made by virtue of the order of sale divested all of the right, title, and interest of the unknown heirs as fully as though they had been personally in court. They were inhabitants of Texas at the time they were cited by publication, and were bound by the laws of Texas in regard to citations by publication.

It was held in the case of Martin v. Burns, 80 Tex. 679, 16 S. W. 1073: "It follows that, as the records of the county court do not affirmatively show that S. P. Crockett was a nonresident of this state when the citation was made, the ruling of the court below in holding that the judgment of the county court of Mitchell county was valid and binding, in so far as the question of notice was concerned, was correct. * * * This conclusion is not in conflict with the doctrine of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, but is based entirely upon the absolute presumptions which the law indulges in support of a judgment of a domestic court of general jurisdiction and the verity of its records. It must now be regarded as the settled rule of decision in this state that when applicable the chief principle announced in Pennoyer v. Neff will be observed, and that when it affirmatively appears from the record that a purely personal judgment has been rendered against a nonresident and citizen of another state, without appearance or waiver by him, upon citation by publication alone, or by process beyond the state, such judgment cannot be enforced and is subject to collateral attack. This is the extent to which the decisions in this state go." This quoted language was used in a case in which a personal judgment was rendered against parties cited by publication. In the case of Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325, the Martin-Burns Case is cited with approval. We know of no decision questioning the correctness of the decision in the Martin-Burns Case. The decisions cited by appellants are all in reference to parties who were non-residents, and of course have no applicability to this case, as will be readily seen by a perusal of the opinion in the main case cited (that of Stephens v. Stephens, 62 Tex. 340).

In the case of Iiams v. Root, 22 Tex. Civ. App. 413, 55 S. W. 411, in which a writ of error was refused, it was said: "There is no question as to the correctness of the proposition that, unless it appears from the record that the defendant was a nonresident of the state at the time this suit was brought and service was had by publication (the court in which it was tried being a domestic court of general jurisdiction and having jurisdiction of the subject-matter of litigation), it will be conclusively presumed, on collateral attack, that it had jurisdiction over the person of the defendant, and a personal judgment was properly rendered against him."

We think that the suit on the notes was conclusive as to Mrs. Eardley; but Mrs. Gibson, not being an heir, was not affected by a judgment against the unknown heirs of Thomas Coble. She was not in any way a party to the suit. Not being an heir, she could not be cited under the statute as to unknown heirs, because no property had been granted or had accrued to her as an heir of her husband. As said by the Supreme Court, "Notice by publication is, at best, but a miserable substitute for personal service" (Edrington v. Allsbrooks, 21 Tex. 186); and service provided for a certain named class cannot be held to bind others of a different class. Laws as to publication are not liberally interpreted, but strictly construed. Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347. If Mrs. Gibson had been named or cited so as to identify her, the judgment as to her would not have been void, for it has been held that, if it is recited in the judgment that a party was duly cited, it cannot be attacked in a collateral proceeding, although proof aliunde the record would show conclusively that there had been no service. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329; Moore v. Hanscom, 101 Tex. 293, 106 S. W. 876, 108 S. W. 150. Not being a party to the suit, Mrs. Gibson was not bound by the judgment. It follows that she not only was not bound by the sale of the 15 acres of land, but also by the...