Kempner v. Jordan

• Decision Date: 10 May 1894
• Citation: 26 S.W. 870
• Parties: KEMPNER et al. v. JORDAN et al.
• Court: Texas Court of Appeals

26 S.W. 870

KEMPNER et al. v. JORDAN et al.

Court of Civil Appeals of Texas.

May 10, 1894.

Appeal from district court, Galveston county; W. H. Stewart, Judge.

Action by J. M. Jordan and others against H. Kempner and others to vacate a portion of a judgment rendered in favor of defendants against plaintiffs. From a judgment for plaintiffs, defendants appeal. Affirmed.

Davidson & Minor, for appellants. S. S. Hanscom, for appellees.

GARRETT, C. J.

This suit was brought by J. M. Jordan to vacate and annul so much of a judgment rendered by the district court of Galveston county, in a suit therein pending (No. 15,669, H. Kempner v. J. M. Jordan et al.), on the 25th day of March, 1892, as foreclosed a lien asserted in said suit on 125 acres of the land described in said judgment. An injunction was also prayed for, and obtained, restraining the execution of a writ of possession in the hands of the sheriff in favor of Kempner. As cause for the relief, the plaintiffs averred that the said Harriet Jordan, who appears from the judgment in said cause No. 15,669 to be a party thereto, was never in fact served with process therein, and never had any notice thereof until she was notified of the writ in the hands of the officer; that the said 125 acres of land was a part of the homestead of the plaintiffs, and had been continuously for more than 20 years; and the plaintiff Harriet Jordan had not signed the deed of trust, which had been foreclosed as a lien thereon in said suit. The defendants (the said H. Kempner, and the sheriff, I. A. Daniels) entered a general demurrer to the petition, and excepted, also, that it appeared that the injunction was applied for more than a year after the date of the judgment, without showing any reason to excuse delay; that the bond for injunction was insufficient in amount; and that the petition showed no equity entitling the plaintiffs to an injunction. They also made a general denial of all the allegations in the petition, and pleaded specially the service of the process. A motion to dissolve the injunction was also filed. On trial below without a jury, the court overruled the demurrers and the motion to dissolve the injunction, and rendered judgment on the merits, annulling and vacating the judgment in said suit No. 15,669 in so far as the same foreclosed a lien upon the 125 acres of land which were adjudged to be the homestead of the said J. M. Jordan and his wife, Harriet Jordan, and perpetuating the injunction. The questions presented on this appeal are: (1) Will a court of equity hear evidence to impeach a judgment by contradicting the sheriff's return of service in any other case than where the plaintiff has procured or connived at the false return? (2) Is the evidence in this case sufficiently clear and satisfactory to support the finding of the court below that Harriet Jordan was never served with citation, or other notice or process, in cause No. 15,669, and had no notice of the suit?

Conclusions of Fact.

(1) The land in controversy, at the time of the execution of the deed of trust thereon by J. M. Jordan, and at the date of the judgment in the suit No. 15,669, and before and ever since, was and has been the homestead of said Jordan and wife. (2) Mrs. Jordan was never served with citation or other notice or process in said cause numbered 15,669, and had no notice of that suit until within a few days before the one at bar was instituted. (3) Citation was issued to the defendant in the said suit No. 15,669, to Houston county, and was returned by F. H. Bayne, sheriff of said county, as served. The return of the sheriff is regular on its face, and shows due service on all the defendants, including the defendant Harriet Jordan. (4) The return of the sheriff was a false return, but it is nowhere shown that the plaintiff procured or connived at the same. F. H. Bayne testified positively that he served the writ as shown by the return, and stated the circumstances under which he claims it was done. Jordan and his wife both testified positively that the writ was not served on Mrs. Jordan, and related their version of the circumstances attending the visit of the sheriff to their home, when he claims to have made the service.

Conclusions of Law.

There is a conflict of authority as to whether or not the return of the sheriff, showing service on a party who is apparently bound by a judgment, may be impeached by such party. We do not find that the question has ever been determined in this state. Randall v. Collins, 58 Tex. 231; House v. Collins, 42 Tex. 492; Masterson v. Ashcom, 54 Tex. 326; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908. A number of authorities are referred to in Randall v. Collins and Masterson v. Ashcom, supra, but the question is not decided. It must be observed that this is not a collateral attack upon the return of the sheriff, but a suit between the original parties to vacate and annul the judgment. Hence, the case of Ayres v. Duprey, 27 Tex. 594, does not apply. It is held by the supreme court of the United States that the return can be impeached only when the plaintiff has procured or connived at the false return, and there are a number of other cases from state courts to the same effect. See authorities cited by appellant, and also those collected by the text writers cited below. But both Freeman and Black state that the weight of authority is that the false return may be impeached without...