Kitchen v. Crawford

• Decision Date: 01 January 1855
• Citation: 13 Tex. 516
• Parties: JOHN T. KITCHEN v. JOHN F. CRAWFORD.
• Court: Texas Supreme Court

13 Tex. 516

JOHN T. KITCHEN

v.JOHN F. CRAWFORD.

Supreme Court of Texas.

1855.

Appeal from Harris. Action by the appellee against the appellant. Affidavit by plaintiff that defendant “is not an inhabitant or resident of the State of Texas, to the best of his knowledge and belief.” Service by publication. Judgment by default. Execution to Milam county. Petition by defendant to the judge of the third judicial district for an injunction to the sheriff of Milam county, and for citation to the plaintiff to show cause at next term of Harris District Court why the judgment should not be annulled for causes alleged in the petition. Order for injunction accordingly, dated at Brenham, and directed to the clerk of Harris District Court. Injunction accordingly. The petition alleged a good defense: “And petitioner further represents that said John F. Crawford instituted said suit with a view of cheating and defrauding him, as he was a resident of Burleson county, State of Texas, at and before the time of the institution of the suit, and has since that time lived in Burleson and Milam counties, and service could have been obtained upon him at any time since the sale of said slave Bartlett.” (The suit grew out of said sale.) “Petitioner further represents that he has never received any notice of the institution of said suit until informed that the sheriff of Milam county held the execution against him.” On demurrer of Crawford, the injunction was dissolved, and the petition dismissed.

P. W. Gray, for appellant. I. As to the general power of the judges of the District Courts to grant remedial writs, (see Const., art. IV, sec. 10; Hart. Dig., arts. 640, 643, 646.) Rule XXX adopted by the S. C. of the Republic for the government of the District Courts (1 Tex. R,, 852) is absolete, or repealed by implication by the new rules adopted in 1847. It is, moreover, inconsistent with the constitution and act above cited.

II. The appellant adopted the proper mode of proceeding. (1 Tex. R., 228; 3 Id., 268;8 Id., 342;9 Id., 58;10 Id., 190; Madd. Ch., 542-3; Story Eq. Pl., sec. 420.)

III. The facts alleged entitled the appellant to relief on the ground of fraud. (8 Tex. R., 12; 1 Story Eq., secs., 187, 188, 192; 3 Cr. R., 306; 2 Mo. R., 145; Smith's L. C., Am. Ed., 500.) The defendant was a resident of Burleson county. (Hart. Dig., art. 667; 8 Tex. R., 122; 4 Id., 122;6 Id., 392.)

Henderson & Sabin, for appellee. It is contended by appellee that the judge of one district cannot grant remedial writs in cases arising in another district; and this is clearly manifest from the constitution of the State of Texas. Art. IV, secs. 6 and 10 provides for a judge of each district with general powers to grant all remedial writs to enforce their own jurisdiction. Sec. 14 provides for the exchange of judges; but when that exchange is made the judge acting is the judge of the district in which he may be, and as we contend by virtue of the authority conferred in the constitution to exchange districts, and not by virtue of his being a District Judge of the State of Texas. Any other construction would give him power to hold courts out of his district without the exchange with the judge of the district, which certainly cannot be done. Suppose the judge of this district should fail to open his court in Galveston on the day fixed by law, and the judge of the seventh judicial district without an exchange with the judge of this district, should, by virtue of his election in the seventh judicial, claim to hold the court at Galveston: could he do it? We contend not.

II. The question of jurisdiction raised by appellant, it is conceived, is not correct. The District Court of Harris county is a court of general jurisdiction. It was the county of the residence of plaintiff, and the subject matter was an amount to give that court jurisdiction, and as decided in this court in the case of McMullen v. Guest, (6 Tex. R., 279,) that the residence of the plaintiff and the non-residence in the State of defendant, gave jurisdiction to the court in the county of the residence of plaintiff.

The question then not being one of jurisdiction, but one of privilege, the appellee can only at most be permitted to review the decision of the court upon the facts as enrolled and certified by the court, or for errors of law upon the face of the decree.

In this case he does not seek to do that; he is attempting to raise the question of privilege in a former suit, by tendering an issue as to his residence at the time of the institution of the former suit; he is attempting to attack the truth of the affidavit made to obtain process.

This court has decided that matters in an affidavit for attachment are not traversable. (Cloud v. Smith, 1 Tex R., 611.) Will they hold that an affidavit for service in a publication case is traversable? We think not.

WHEELER, J.

In the late case of Mussina v. Moore, Supra, it was held that the 129th section of the act to regulate proceedings in the District Court, which authorizes a “petition of review” for the reversal of judgments rendered in cases where service has been by publication only, and on an ex parte hearing, (Hart. Dig., art. 783,) does not contemplate a bill of review strictly and technically, as known to courts of chancery, but was intended to afford a more ample remedy, and to give the defendant, who, from want of actual notice of the suit, had been deprived of the opportunity of being heard, to contest the plaintiff's demand and assert his matters of defense upon a proper application, the right to a retrial and reinvestigation of the merits of the case; and that the petition for this purpose will be deemed legally sufficient, on demurrer, if it appear by its averments that the defendant had a meritorious defense to the action, and that he was deprived of the opportunity of availing himself of it at the trial, or of moving in proper time for a new trial, by reason of the want of personal service, or actual notice of the suit.

The petition in this case is clearly sufficient under the ruling in the case of Mussina v. Moore, and this might suffice for the present disposition of the case. But other questions have been raised in argument, which will necessarily arise in the future progress of the case, and some notice of them here may remove the occasion for a second appeal.

There are certain predicaments of fact or conditions necessary to authorize service by publication. These are, that the defendant is not a resident of this State; that he is absent from the State; that he is a transient person; or that his residence is unknown to the plaintiff, his agent or attorney. (Hart. Dig., art. 813.) Except upon one of these conditions citation by publication is not legal service, and the proceedings and judgment had against the defendant thereupon, will be irregular and voidable for the want of it. The law regards the affidavit of the party, his agent or attorney, sufficient prima facie evidence to authorize the proceeding by publication. But it is not the making of the affidavit, but the truth of it, that is, the existence in fact of the assumed condition which enables the court to acquire jurisdiction over the person of the defendant by publication. The law proceeds upon the prima facie evidence of the fact afforded by the affidavit; but that is but prima facie evidence, and may be rebutted by proving the contrary; which, we think, it was the intention of the law to enable the defendant to do by the direct proceeding which it gives by a petition of review to revise the judgment. And if in this proceeding it be proved that a predicament of fact did not exist which authorized service by publication it will be ineffectual, and the proceeding had thereupon will be set aside as irregular. This view of the...