Hopkins v. Cain

• Decision Date: 21 February 1912
• Parties: HOPKINS et al. v. CAIN.
• Court: Texas Supreme Court

143 S.W. 1145

HOPKINS et al. v. CAIN.

Supreme Court of Texas.

February 21, 1912.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by C. Cain against Edward H. Hopkins and others; Helen E. Hendrickson and others intervening. Judgment of the Court of Civil Appeals (141 S. W. 834), reversing a judgment of the district court for interveners and rendering judgment for plaintiff, and interveners bring error. Reversed, and judgment of the district court affirmed.

C. R. Wharton and Earl Wharton, for plaintiffs in error. Jacob C. Baldwin, for defendant in error.

BROWN, C. J.

Sue E. Baker and Edward H. Hopkins and wife were owners of 1,043 acres of land in a survey patented to Wm. Francis in Harris county. Sue E. Baker filed a suit in the district court of Harris county against Edward H. Hopkins and Clara B. Hopkins and their unknown heirs, whose residences were unknown. In that suit Sue E. Baker claimed two-thirds of the land, alleging that the remaining one-third belonged to the defendants. Service was had by public citation, and judgment was rendered in favor of Sue E. Baker for two-thirds and Edward H. and Clara B. Hopkins and their unknown heirs for one-third, awarding partition, which was had, and 348 acres were set off to the Hopkins and their heirs. Edward H. and Clara B. Hopkins were dead at the time the suit was filed. None of the heirs appeared, and the district court appointed an attorney to represent them. The papers in the case, except the statement of facts, were lost. The land was regularly partitioned and report approved, and the court entered judgment against the heirs of Hopkins for $75 attorney's fee, and one-third of the costs, and ordered sale to be made of the land set apart to the defendants, if the sum adjudged should not be paid in 20 days, which was not done, and the land was sold at public outcry to Eva W. Walker, who conveyed it to Cain. The sale was approved by the court.

The question for decision is: Was the judgment of the district court, which ordered the sale of the land, void? The papers having been lost, we assume that the proceeding was regular and the citation for publication in proper form.

The question turns upon the compliance or noncompliance with the statute by the sheriff in publishing the citation and making return thereof. Article 1236 provides that the sheriff shall cause publication of the citation to be made "once in each week for eight successive weeks previous to the return day of such citation." Article 1238 reads: "The return of the officer executing such citation shall be indorsed or attached to the same, and shall show when the citation was executed and the manner thereof, specifying the dates of such publication, shall be accompanied by a printed copy of such publication, and shall be signed by him officially." The judgment entered was that Sue E. Baker recover two-thirds of the land and that Edward H. Hopkins and Clara B. Hopkins and their unknown heirs recover one-third, ordering partition, etc., and adjusting costs. The procedure in such case is prescribed by article 1346, Revised Statutes, thus: "Where service of process has been made by publication, and no answer has been filed within the time prescribed by law, the court shall appoint an attorney to defend the suit and judgment shall be rendered as in other cases; but in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as part of the record thereof." The judgment in this case did not contain any recital as to service, but the statement of facts contained a copy of the citation by publication and this indorsement thereon by the sheriff: "Came to hand on the 24th day of March, A. D. 1900, at 10 o'clock a. m., and I executed the within citation, by publishing the same in the Houston Daily Herald, a newspaper published in the county of Harris, once in each week, for eight successive weeks previous to the return day hereof. Said publication was made respectively on the 15th and 25th...