Lawler's Heirs v. White

• Decision Date: 01 January 1863
• Citation: 27 Tex. 250
• Parties: LAWLER'S HEIRS v. T. J. WHITE AND OTHERS.
• Court: Texas Supreme Court

27 Tex. 250

LAWLER'S HEIRS

v.T. J. WHITE AND OTHERS.

Supreme Court of Texas.

1863.

The record of the district court, in a cause adjudicated by it in 1843, recited that notice of the suit had been served upon the defendant by publication. Held, in a suit brought to vacate the decree rendered in such former cause, and to recover the land thereby divested out of the ancestor of the present plaintiffs, that parol testimony was not admissible to controvert the recital of service by publication contained in the record sought to be impeached.

The weight of authority seems to establish the proposition, that even where the record is silent on the subject of notice, the judgment of a court of this state of general jurisdiction will support itself, and cannot be impeached or called in question collaterally, because of any alleged want of jurisdiction over the parties to the decree.

NOTE.--Withers v. Patterson, post, 491; Mitchell v. Menley, 32 Tex., 460;Black v. Epperson, 40 Tex., 162.

The case of Grassmeyer v. Beeson (13 Tex., 524), affirming the sufficiency of service, by publication, upon non-residents, before that mode of service was authorized by statute, cited and approved.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

The heirs of Joseph P. Lawler, deceased, instituted this suit against T. J. White and others, for the recovery of a quarter of a league of land, the headright of the said Lawler, deceased.

After setting forth their right of inheritance from Lawler, the plaintiffs alleged in their petition that there appeared upon the docket of the district court of Gonzales county, republic of Texas, at its fall term, 1841, a suit entitled “J. D. Clements, Administrator of Thomas R. Miller, v. Joseph P. Lawler,” being a bill for discovery, relief and specific performance. The petition then proceeds to set forth the substance of the bill or suit referred to, and the proceedings therein, and also the final decree rendered at the spring term, 1843, whereby the title to the land now in controversy was divested out of said Joseph P. Lawler and vested in the successors and heirs of the said Thomas R. Miller, deceased. The plaintiffs pray that this decree be reviewed and vacated, controverting the allegations of the bill upon which it was rendered, and impeaching its validity for several specified reasons; and among them, denying that any service or citation, in person, by publication or otherwise, was ever had upon said Lawler in the suit referred to. The petition further showed that the present defendants, White and others, claimed and derived their title and possession of the land in controversy under the decree in the suit of Clements v. Lawler aforesaid, which the plaintiffs prayed might be annulled and vacated, and the land decreed to them.

The decree in the case of Clements v. Lawler commenced with the recital: “In this cause, it appearing that the order of publication ordered at the last term having been duly executed, and the defendant not appearing, the cause was heard upon the bill of the complainant; whereupon it is ordered and decreed by the court, that the title of the defendant in and to the quarter of a league of land in the bill mentioned, be divested, if not already sufficiently divested by the assignment referred to in the supplement to said bill; and that the title to the same be vested in the successors and heirs of the said Thomas R. Miller,” etc.

White and others, who were defendants below, filed many exceptions to the petition, regarding it either as a bill of review or as an action of trespass, which were overruled. They also filed their answer, pleading, among other defenses, the decree in the case of Clements v. Lawler as a bar to the plaintiffs' action.

The record of the case of Clements v. Lawler was exhibited with the petition, and it appeared therefrom that on the 9th of October, 1841, the court made an order of publication for the defendant, who, it recited, was “beyond the jurisdiction of the courts of the republic of Texas;” and directed such publication to be made in “Austin City Gazette, for four successive weeks prior to the next term of this court.”

At the trial of the present cause, during the spring term, 1858, the plaintiffs introduced the deposition of the witness Gray, to prove that he had thoroughly examined a full file of the Austin Gazette, preserved in the state department, and that there was no publication of notice or citation, in the case of Clements v. Lawler, to be found in the issues of that paper, from the date of the order up to the rendition of the decree. The defendants objected to this testimony, on the ground that parol evidence could not be received to contradict the record of the decree. The court sustained the objection, and excluded the deposition; whereupon the plaintiffs excepted.

The court...