Heirs of Yturri v. McLeod

• Decision Date: 01 January 1861
• Citation: 26 Tex. 84
• Parties: HEIRS OF YTURRI v. J. D. MCLEOD, CHIEF JUSTICE, ETC., FOR USE, ETC.
• Court: Texas Supreme Court

26 Tex. 84

HEIRS OF YTURRI

v.J. D. MCLEOD, CHIEF JUSTICE, ETC., FOR USE, ETC.

Supreme Court of Texas.

1861.

A bill of review will not lie in this state to revise a judgment for errors of law apparent on the face of the record. The remedy for such errors is by appeal or writ of error. The ruling of this court on this point in the case of Seguin v. Maverick, 24 Tex. 526, cited and approved. [24 Tex. 526;post, 316.]

Where a judgment of the district court was collaterally impeached for alleged want of service upon one of the two defendants thereto, and part of the papers being lost, there appeared among the remainder no evidence of service, a recital in the judgment itself that the “parties appeared by their attorneys,” is prima facie evidence that the defendants appeared and subjected themselves to the jurisdiction of the court. And it further appearing of record that there were two distinct motions for new trial, signed by different counsel, a strong inference is raised thereby that both defendants were, in fact, represented in court, and that the recital in the judgment of the appearance of the parties by their attorneys was not a clerical error.

A probate court, in rendering a decree based upon a judgment in a district court, cannot examine into alleged errors of law in such judgment; nor can such judgment be revised in the district court by certiorari to the decree of the probate court. But a judgment of the district court which was void for want of service upon the defendant cannot constitute the basis of a decree in the probate court.

The appearance of a defendant is a waiver of service and citation, and authorizes the rendition of judgment against him.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

Manuel and Vicenta Yturri, minor heirs of Manuel Yturri Y. Castillo, by their next friend, Warrick Tunstall, instituted this suit on the 24th of February, 1855, in the district court of Bexar county, for the purpose of bringing before that court and revising, by certiorari, a decree of the county court for the settlement of estates, rendered April 26, 1854, in favor of Francois Radaz against Mariano Rodriguez, guardian of the plaintiffs; which decree was based upon a judgment of the district court of Bexar county, rendered at the fall term, 1852, in favor of J. L. Hewitt, probate judge, for the use of said Francois Radaz as heir at law of Donat Radaz, deceased.

The petition impleaded, as defendants, John D. McLeod, the judge who rendered the decree in the county court; Francois Radaz, the party in whose favor it was rendered; and Mariano Rodriguez, the guardian of the infant plaintiffs, who was charged in the petition with fraudulent collusion in the rendition against him as guardian of the judgment of the district court upon which the decree was based, and who, it was further alleged, had never been served with process in the suit wherein such judgment was rendered.

The judgment in the district court above referred to was rendered at the fall term, 1852, for $1,773.67, in favor of J. L. Hewitt, probate judge, who sued for the use of said Francois Radaz, heir at law of Donat Radaz, deceased, and against Wm. B. Jacques, security of Isadore Clausel, administrator of Donat Radaz, and also against Mariano Rodriguez, guardian of Manuel and Vicenta Yturri, minor heirs of Manuel Yturri Y. Castillo, who was also a security of said administrator. Notice of appeal was given by Jacques and Rodriguez, but the appeal was never prosecuted further.

The decree of the probate court, also referred to above, was obtained by Francois Radaz, on 26th April, 1854, against said Mariano Rodriguez, guardian as aforesaid, to compel him to pay the judgment of the district court out of the assets and property of his wards.

In their petition in the cause now appealed, the plaintiffs set forth many alleged errors of law apparent on the face of the record of the judgment against their guardian, Rodriguez; and for which errors they prayed that such judgment and the decree of the probate court thereon might be revised and vacated. And besides these errors in law--which, under the ruling of this court in the opinion, it is not deemed necessary to specify particularly,--the plaintiffs also charged that Mariano Rodriguez, their guardian, fraudulently colluded in the rendition of the said judgment against him in his fiduciary capacity; and that, in point of fact, he never was served with process in the suit wherein the same was rendered; wherefore they charge that the said judgment, and the decree of the probate court to enforce it, are and should be declared to be null and void.

The defendants, Radaz and McLeod, demurred to the petition, and also answered with a general denial. The defendant, Rodriguez, denied the fraud and collusion charged against him, and alleged that he had no recollection of service of process upon or appearance by him in the suit of Hewitt, judge, against him as guardian of the infant plaintiffs. The record of that suit was put in evidence, when it appeared that many of the papers had been lost or destroyed, and among those that remained there...