Imatani v. Marmolejo

• Decision Date: 04 September 1980
• Docket Number: No. 1623,1623
• Citation: 606 S.W.2d 710
• Parties: James IMATANI and Henderson Pickle Company, Inc., Appellants, v. Brig MARMOLEJO and Frank Schuster, Appellees.
• Court: Texas Court of Appeals

Page 710

606 S.W.2d 710

James IMATANI and Henderson Pickle Company, Inc., Appellants, v. Brig MARMOLEJO and Frank Schuster, Appellees.

No. 1623.

Court of Civil Appeals of Texas, Corpus Christi.

Sept. 4, 1980.

Rehearing Denied Oct. 9, 1980.

R. A. Vidaurri, Flores, Sanchez, Vidaurri & Munoz, McAllen, for appellants.

Thomas G. Sharpe, Jr., Brownsville, Katie Pearson Klein, Edinburg, for appellees.

OPINION

BISSETT, Justice.

This is an action to set aside a sheriff's sale of land and to enforce a judgment debtor's alleged attempt to tender all money due the judgment creditor. The present suit was filed by James Imatani and Henderson Pickle Company, Inc., in the 206th District Court of Hidalgo County, Texas, to set aside a sheriff's sale made under an order of sale issued out of the 92nd District Court of Hidalgo County, Texas, pursuant to a judgment rendered by the latter court. Following a trial to the court, a take nothing judgment was rendered in favor of Brig Marmolejo and Frank Schuster, ¹ defendants. Plaintiffs have appealed.

On November 15, 1974, Frank Schuster filed suit (the first suit) against James Imatani, doing business as Rio Grande Pickle Company of Texas, to recover damages for breach of contract. The suit was filed in the 93rd District Court of Hidalgo County, Texas, and was docketed as Cause No. B-27,373. On September 9, 1976, a joint and several judgment in the amount of $6,783.99, together with 9% interest thereon, was rendered in said cause against Imatani and Rio Grande Pickle Company of Texas. The judgment was duly abstracted and indexed in Hidalgo County, Texas, on September 9, 1976.

On January 12, 1977, Frank Schuster filed suit (the second suit) against Henderson Pickle Company, Inc., allegedly, "a Corporation whose principal place of business is in McAllen, Hidalgo County, Texas." This suit was filed in the 92nd District Court of Hidalgo County, Texas, and was docketed as Cause No. A-13,416. Schuster sought to impose his judgment lien against the land involved in this appeal, which, at that time was owned by Henderson Pickle Company, Inc. A default judgment ² was rendered in favor of Schuster on February 16, 1977. The judgment will henceforth be referred to as the "1977 judgment."

A writ of execution was duly issued in accordance with the 1977 judgment in the second suit. Sale of the property was ordered to be held at public auction on the first Tuesday in May, 1977 (May 3, 1977), between the hours of 10:00 a. m. and 4:00 p. m.

On May 3, 1977, Imatani and Henderson Pickle Company, Inc., allegedly "a Colorado Corporation," filed the instant suit (the third suit) against Schuster and Marmolejo. This suit, as already noted, was filed in the 206th District Court of Hidalgo County. It was filed at 9:45 a. m. on May 3, 1977, and was docketed as Cause No. D-1827. In their original petition in the third suit, the plaintiffs alleged that Henderson Pickle Company, Inc., "received no notice" of the suit filed against it in the second suit, and a default judgment was rendered against it. They further alleged that on May 2, 1977, their attorney tendered to Schuster's attorney a cashier's check in the amount of $8,211.28 "in full payment of the judgment, all interest and costs" but the "check was refused." They also alleged that the said sum of $8,211.28 "in full payment of the judgment, all accrued interest and court costs" was paid into the registry of the court and asked that the court issue a temporary restraining order, "restraining the defendant Brig Marmolejo from selling the property under the writ of execution," and, further, for the issuance of a temporary injunction pending a trial on the merits. The judge of the 206th District Court, at approximately 9:45 a. m., on May 3, 1977, granted the prayed-for temporary restraining order, but by the time Schuster and Sheriff Marmolejo had been officially notified of such action by the judge, the property had already been sold by the Sheriff at execution sale to Schuster. The sale was made at 10:03 a. m.

On July 27, 1977, Henderson Pickle Company filed a petition for a bill of review in the 92nd District Court of Hidalgo County, Texas, wherein it seeks to have the default judgment set aside. Schuster filed an answer thereto on September 22, 1977. The proceeding is still pending.

The plaintiffs amended their petition in the third suit on July 5, 1977, wherein, in addition to other relief sought, they prayed that the sheriff's sale of the property to Schuster be set aside. Trial commenced on July 15, 1979. A take nothing judgment was rendered on August 30, 1979. It is this judgment, the judgment which was rendered in the third suit, which has been appealed to this Court.

The plaintiffs, in points 3 and 4, contend that the sheriff's sale of the land in question should be set aside and the funds on deposit in the District Clerk's office as a result of plaintiffs' tender into the registry of the court should be ordered paid "to Schuster's Estate." As grounds therefor, they say that "the default judgment through which the order of sale was issued was void since no valid service of process was had on the defendant (Henderson Pickle Company, Inc.)." The 1977 judgment which was rendered in the second suit, and which is attacked in the third suit as being void, recites that the defendant Henderson Pickle Company, Inc., "although having been duly served with citation ... is wholly in default."

The first matter to be determined is whether the attack made by plaintiffs on the 1977 judgment is a "direct attack" or a "collateral attack." We hold that it was a collateral attack. See Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.Sup.1973), and Akers v. Simpson, 445 S.W.2d 957 (Tex.Sup.1969); Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895).

It is the thoroughly established rule in this state that a defendant who is not served with process and who does not make any appearance at the trial may not, as a matter of public policy, attack the verity of a judgment in a collateral attack. Akers v. Simpson, supra. It is equally well settled that, as against a collateral attack, a clear and definite recital in the judgment on jurisdictional matters is conclusive of the issue of jurisdiction, imports absolute verity and no evidence of any kind, not even the remainder of the record, will be considered in contradiction thereof, even though such evidence would show that jurisdiction was not, in fact, acquired. Treadway v. Eastburn, 57 Tex. 209 (1881); Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932 (Com.App.1935, opinion adopted); Crawford v. McDonald, supra; Switzer v. Smith, 300 S.W. 31 (Tex.Com.App.1927); Cook v. Cook, 233 S.W.2d 163 (Tex.Civ.App.-Fort Worth 1950, writ ref'd); Bemis v. Bayou Development Co., 184 S.W.2d 645 (Tex.Civ.App.-Galveston 1944, writ ref'd); Noel v. Orr, 418 S.W.2d 690 (Tex.Civ.App.-Austin 1967, writ ref'd n. r. e.); Lewright v. Manning, 392 S.W.2d 466 (Tex.Civ.App.-Corpus Christi 1965, no writ).

A judgment, which recites the necessary jurisdictional facts, can only be assailed by a direct proceeding. Levy v. Roper, 113 Tex. 356, 256 S.W. 251 (1923); Robins v. Sandford, 29 S.W.2d 969 (Tex.Com.App.1930); Pure Oil Co. v. Reece, supra.

Under the authorities set out above, we are compelled to hold that the plaintiffs in the third suit may not show in their collateral attack on the 1977 judgment in the second suit that the same is void for the reason that "no valid service of process" was had on Henderson Pickle Company, Inc. The judgment is regular and valid on its face. Points 3 and 4 are overruled.

Plaintiffs, as we read the written argument in their brief and as we understand their oral argument concerning tender, argue that the sheriff's sale should be set aside on another ground. According to the argument, they made a proper tender to Schuster of the full amount of the money, interest and costs owing on the 1977 judgment before the property was actually sold. They say that this tender was refused by Schuster, and, as a result of such refusal, he thereby relinquished his right to purchase the land in question at the sheriff's sale. They further argue that Schuster's refusal of the tender precluded, as a matter of law, the sale of the land in question by the sheriff to anyone under the outstanding writ of execution and order of sale.

The trial court made and filed certain findings of fact and conclusions of law, but there are neither findings...