Holt v. Love

• Decision Date: 20 October 1910
• Citation: 131 S.W. 857
• Parties: HOLT v. LOVE et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

131 S.W. 857

HOLT v. LOVE et al.^†

Court of Civil Appeals of Texas.

October 20, 1910.

On Motion for Rehearing, November 17, 1910.

Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.

Action by Emma J. Love and another against W. H. Holt, in which Ella Taylor and another intervened. From a judgment for plaintiffs for a third of the land sued for and in favor of the defendant for the remainder, defendant appeals, and the interveners file cross-assignments of error. Reversed and remanded.

Orrick & Terrell, for appellant. Harris & Harris, for appellees.

HODGES, J.

This suit was originally instituted by Emma Love, formerly Emma Chism, one of the appellees, joined by her husband, against the appellant, Holt, to recover a tract of 80 acres of land described in her petition. Afterward Ella Taylor, a sister of the plaintiff in the suit, joined by her husband, intervened, setting up a claim to a one-half interest in the land sued for. It appears from the pleadings and subsequent proceedings that the claim of the interveners was not contested by the plaintiffs, and that they thereafter made a common claim against Holt. Emma Love and Ella Taylor are the children of E. W. and M. J. Chism, both deceased, through whom they assert title by inheritance. They allege that the property was the separate estate of their mother; and in the alternative say that, if they are mistaken in this, then it was the community property of their father and mother. The appellant, Holt, claims the land by virtue of a purchase at a sale made in obedience to a partition decree rendered in a suit numbered 4001, styled Isaac Caradine and Others v. R. M. Kinkle and Others, rendered in 1896. The sufficiency of the defense relied upon by him to defeat the claim of Emma Love depends upon the binding force of that decree. The claim of Ella Taylor is also met by the further plea of limitation of five years. The case was submitted to the jury on special issues, and a judgment rendered in favor of Emma Love and her husband for one-third of the land and in favor of appellant Holt for the remainder. The case is brought up on appeal by Holt, but Ella Taylor and her husband have filed several cross-assignments of error.

The evidence shows that in 1887 the suit before referred to was instituted in the district court for the Thirty-Seventh judicial district of Texas by Isaac Caradine and others against R. M. Kinkle, R. D. Leatherman, A. M. Coble, and E. W. Chism, the father of Emma Love and Ella Taylor, to recover 160 acres of the Caradine survey, of which the land in controversy is a part. Upon what the judgment in that case terms a "severance," specific portions of the land were awarded to Leatherman and Coble, leaving only that here involved to be disposed of in the final decree. Both Chism and his wife died during the pendency of this litigation, which seems to have been protracted through several years. Chism survived his wife a little more than a year, and married again previous to his death. Both of the appellees were minors and unmarried at the time of their father's death. The record shows that the death of E. W. Chism was suggested in that suit, and an order entered making the appellees parties. Upon the final trial of that case judgment was rendered in favor of Mary Sharp, one of the Caradine heirs and a plaintiff in the suit, for a portion of the land, and for the defendants, including the appellee Emma Love and appellant Ella Taylor for the remainder, and directing a partition of the property. Emma Love and Ella Taylor each received in that judgment an interest equal to 2/39 of the land involved. Commissioners were appointed to make the division, but reported that the land was not susceptible of partition. The court thereupon ordered it sold and the proceeds divided. At that sale the appellant became the purchaser, and here asserts the title there acquired. The record shows that he paid $500 for the land. Appellee Emma Love and her sister seek to evade the force of that decree and the sale made thereunder by alleging and showing that they were never served with citation in that suit; that they were minors at the time, and knew nothing of its pendency, and were not represented by any guardian ad litem upon the trial. They ask that the judgment there rendered be set aside as to them, and the cloud cast by it upon their title be removed. In reply to this, the appellant contends that the record shows affirmatively that these parties were served with citation, and were represented in the trial of that case by a special guardian. He further contends that, if they were not served with citation and were not so represented, their impeachment of this judgment is collateral, and not permissible. We have therefore two questions presented by this phase of the pleadings: (1) Whether the original judgment was void or merely voidable as to Emma Love and Ella Taylor; and (2) whether their pleadings in this suit constituted a collateral, or a direct, attack upon that judgment. The judgment in cause No. 4001 contains no recital of service on the appellees, but does purport to dispose of their interest in the land in litigation. The record also shows an allowance of a fee of $25 to B. P. Ayres as compensation for his services in representing them as a special guardian. But there does not appear any order appointing him to act in that capacity. Neither the judgment itself in that case nor the record introduced in evidence discloses affirmatively that the court was without jurisdiction of the persons of Emma Love and Ella Taylor. The judgment is therefore only voidable, and not subject to a collateral attack. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Alston v. Emmerson, 83 Tex. 237, 18 S. W. 566, 29 Am. St. Rep. 639; 1 Black on Judg. § 271.

In response to interrogatories propounded by the court, the jury found that Emma Love and Ella Taylor were never served with citation in suit No. 4001; that Emma Love was a minor at the time; that no guardian ad litem was ever appointed by the court to represent her; and that neither she nor her sister knew anything of the judgment having been rendered till a short time before...