Grassmeyer v. Beeson

• Decision Date: 01 January 1855
• Citation: Grassmeyer v. Beeson, 13 Tex. 524 (Tex. 1855)
• Parties: FREDERICK W. GRASSMEYER v. LEANDER BEESON. (Note 84.)
• Court: Texas Supreme Court

13 Tex. 524

FREDERICK W. GRASSMEYER

v.LEANDER BEESON. (Note 84.)

Supreme Court of Texas.

1855.

Error from Colorado. Action of trespass to try title by the plaintiff in error against the defendant in error, to the upper half of a league of land granted to Samuel Kennelly as his headright, April 28th, 1831.

Kennelly executed title bond to the plaintiff August 5th, 1833, to make title to the undivided half of the league when the laws of the country would permit. Grassmeyer instituted suit on the bond for title and partition, in the District Court of Colorado county, October 24th, 1840, and obtained a decree for title and partition, April 26th, 1841; and partition was accordingly made. The petition in said suit alleged that Kennelly was “absent, in parts unknown,” and prayed service on Frederick Scranton, curator of his estate. November term, Scranton answered that he was ignorant of the matters alleged in the petition, and demanded proof. It was then ordered that publication be made in the Austin City Gazette for six weeks, requiring the said Kennelly to appear at the next term, &c. Publication was accordingly made. At next term A. M. Lewis was appointed attorney ad litem for Kennelly, and excepted on the ground that the law required personal service.

Defendant offered no evidence of title in himself. The court instructed the jury that the decree for title in the said case of Grassmeyer v. Kennelly was a nullity. Verdict and judgment for defendant.

G. W. Smith, for appellant. I. It is insisted that the proceedings had to bring Kennelly before the court would have been sufficient, prior to the introduction of the common law, 16th March, 1840. (Art. 98, Laws of Coahuila and Texas.)

Did the acts introducing the common law (Hart. Dig., arts. 127, 128) repeal the above decree? It is contended that the former system of pleadings and practice of the courts as contradistinguished from those of the common law were reserved and not repealed. (Art. 128.)

If I be correct in this, Kennelly was properly in court at the rendition of the decree, Lewis having been appointed attorney ad litem answered and appeared for him as is recited in the decree.

II. It is submitted whether the proceedings had against the curator of Kennelly was sufficient to bind him. The laws of Louisana relative to the settlement of successions, matters of probate, et cetera, were introduced by ordinance of the consultation, 22d January, 1836. (Hart. Dig., art. 983.)

The jurisdiction and power to appoint curators of absentees were confined to and exercised only by the probate courts of Louisiana at the time of the adoption of the laws of that State, (Civil Code, La., arts. 50-53; 3 Martin, 529,) and hence must be “matter of probate” within the very language of the ordinance; and the courts of the Republic of Texas, in virtue of this ordinance, would have the same jurisdiction and power in the appointment of curators of absentees, and would compel them to the performance of their duties as defined in the laws of Louisiana, and consequently curators of absentees appointed in Texas would have the same rights and duties that belong to them in Louisiana. This interpretation was placed on the ordinance by the courts of Texas universally, and much property has changed and rights grown up under it.

This ordinance was not repealed by the act introducing the common law. (Hart. Dig., art. 127.)

The probate act of 1840 (Hart. Dig., p. 320) only repealed so much of the Louisiana Law as conflicted with its provisions. (Art. 1052.) The residue of that system remained in force till 1846. (Art. 1108.) There is nothing in the act of 1840 relating to the appointment, rights, or duties of curators of absentees; hence we conclude that the appointment of Scranton as curator of Kennelly was legal, and that the suit was properly brought against him October 24th, 1840, and the decree would bind Kennelly as completely as a decree againt an executor or administrator can bind the heirs and devisees of a decedent.

III. The act authorizing service of process against non-residents by publication was passed _____, 1844, and I have been unable to find any act authorizing that mode of service before that time. And if the manner pursued by plaintiff against Kennelly be not sufficient to sustain the decree, I am at a loss to know in what manner suits could have been brought by resident citizens against absentees and aliens for partition of their joint property, and all other suits not founded on a debt so as to authorize an attachment; and it would involve this contradiction, that a resident citizen of Texas had rights and was injured, but had no remedy in the courts of the county.

As intimated in the case cited in 9 Tex. R., 33, in the absence of any positive regulation on the subject of practice, (which was in that case in making parties to the suit without citation,) will not the court be permitted to prescribe one so that the citizens of the country could have redress of wrongs and injuries in the courts especially where all the precaution used in this case has been observed.W. G. Webb, also, for appellant.

J. H. Robson, for appellee. I. In deraigning title from a decree of court the judgment must show that the parties appeared or were properly in court. (7 T. B. Monroe's R., 386, 387; 1 Litell's R., 118, 418.)

At the date of the institution of the suit of Grassmeyer v. Kennelly's curator, and judgment, there was no law providing for the appointment of a curator for an absentee. (Hart. Dig., art. 127.)

Even if citation of the curator had amounted to legal service, Scranton was not legally appointed curator of Kennelly, the petition showing that Kennelly's estate was situated in the county of Colorado, and that Scranton, the curator, was a resident of the county of Austin.

II. Neither at the date of the institution of the suit or the rendition of the judgment was there any provision in the law for service by publication. (1 Tex. R., 307, 308.)

III. The plaintiff's cause is not aided by the fact that in the suit against Kennelly an attorney ad litem was appointed to represent him by the court; for there was no law then in existence which authorized the appointment. The laws of Coahuila and Texas provided for the appointment of an attorney ad litem in case of the absence of the defendant from the State, and the civil code of Louisiana provided for the appointment of a “curator ad hoc” for an absentee, in case there was no regular curator, or the absentee had no known agent in the State; but all these laws were repealed by the act of 1840, introducing the common law, so that the appointment of an attorney ad litem in the suit against Kennelly, which was instituted long after the adoption of the common law, was an absolute nullity. (1 Tex. R., 308.)

WHEELER, J.

The only question which it is material to consider is, whether the court erred in adjudging, in effect, that the decree of the District Court of Colorado county of the 28th of April, 1841, was a nullity for the want of personal service on the defendant. And it resolves itself into the question, whether at that day there was any mode by which the courts of this country could acquire jurisdiction of the persons of absentees or non-residents on whom personal service could not be obtained, so as to render a decree which should be effectual to bind them; for every means of obtaining service upon the defendant, known to the law and practice of the courts, either before or since that period, was resorted to in this instance. The curator of his estate was cited, and appeared and answered; publication was made; and an attorney ad litem was appointed to represent the absent defendant.

By the Spanish law in force previous to the adoption of the common law, (Partidas, 3, 2, 12; 6 M. R. N. S., 17,) if a debtor was in captivity or absent, his creditors might require that a curator be appointed, against whom suits...