Levy v. Roper

• Decision Date: 21 November 1923
• Docket Number: (No. 3651.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 256 S.W. 251
• Parties: LEVY v. ROPER et al.
• Court: Texas Supreme Court

Page 251

256 S.W. 251

LEVY v. ROPER et al.

(No. 3651.)^*

Supreme Court of Texas.

November 21, 1923.

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

Action by Mrs. Ward Roper and others, against Sam Levy and others, in which R. L. Hedrick filed a cross-action. A judgment in favor of plaintiffs and against Hedrick on his cross-action was affirmed by the Court of Civil Appeals (230 S. W. 514), and defendant Sam Levy brings error. Affirmed as to plaintiffs, and reversed and rendered as to cross-complainant.

R. M. Vaughan, of Dallas, and J. C. Terrell, of Fort Worth, for plaintiff in error.

S. C. Padelford, of Fort Worth, and F. E. Johnson, of Cleburne, for defendants in error.

Walker & Baker, of Cleburne, for defendant in error Hedrick.

GREENWOOD, J.

In 1903, B. B. Sellars and wife conveyed to Ward Roper 320 acres of land in Hill county, in consideration of $10 cash, and two vendors' lien notes, one for $490, due October 1, 1903, and the other for $500, due October 15, 1904. J. H. Roper, brother of Ward Roper, was surety on the $500 note.

In 1904, Ward Roper and wife conveyed to defendant in error, R. L. Hedrick, in consideration of $860 in cash, a specific tract of 172 acres from the tract of 320 acres.

The $490 note, given by Ward Roper to secure part of the purchase price of the 320 acres, was paid by him, and the $500 note was transferred to D. C. Walden. Ward Roper died on September 16, 1911, leaving as the heirs to his estate a widow and five children, who are defendants in error herein.

On October 9, 1912, the district court of Johnson county rendered a judgment in favor of D. C. Walden against J. H. Roper, for the amount of the $500 note, with foreclosure of vendor's lien on the 320 acres tract of land, against R. L. Hedrick, J. H. Roper, and the widow and children of Ward Roper, deceased, of whom three were minors. The judgment recited that J. H. Roper and R. L. Hedrick were personally served with citation in the suit of D. C. Walden, and that they failed to appear or answer. The judgment recited that the widow and children of Ward Roper appeared by their attorney. There was no recital of any appointment of a guardian ad litem for the minors.

On February 4, 1913, the 320 acres were purchased by plaintiff in error, Sam Levy, for $729.95, at sheriff's sale, under order of sale issued on the aforesaid judgment.

On August 15, 1918, Sam Levy filed a suit in the district court of Hill county against the widow and children of Ward Roper and against R. L. Hedrick, to remove cloud from his title to the 320 acres of land.

On November 15, 1918, the widow and children of Ward Roper brought suit in the district court of Johnson county, against Sam Levy, D. C. Walden, J. H. Roper, and R. L. Hedrick, to set aside the judgment against them, foreclosing the vendor's lien on the 320 acres, and to set aside the sheriff's sale, and to enjoin the prosecution by Sam Levy of the suit filed by him in the district court of Hill county, on the following grounds: First, that the widow and children of Ward Roper did not appear in person or by attorney in the suit brought by D. C. Walden; that they were not served with citations in the suit, and had no knowledge of the suit, judgment, or sale until immediately before the filing of this action; and, second, that no notice was given to the widow and children of Ward Roper of the sheriff's sale of the 320 acres of land, resulting in the land bringing an inadequate price, the land being worth $1,500 at the date of sale.

Defendant in error R. L. Hedrick filed a cross-action, whereby he sought to set aside the judgment of foreclosure and the sheriff's sale, and to enjoin plaintiff in error, Levy, from prosecuting, against him, the action of trespass to try title to the 320 acres, on the ground that the judgment foreclosing the vendor's lien was void because rendered in a suit in which the widow and children of Ward Roper made no appearance and were not cited. No averment was made that Hedrick was not personally cited in the suit brought by Walden, nor that Hedrick was not given due notice of the sheriff's sale.

The trial court refused a peremptory instruction to return a verdict in favor of plaintiff in error on the cross-bill of R. L. Hedrick, and submitted to the jury only two issues. In response to the first, the jury found that the widow and children of Ward Roper had no notice of the time and place of sale of the 320 acres. In response to the second, the jury found the ages of the children, showing that three of them were minors when the decree of foreclosure was entered. Judgment was rendered in the trial court for R. L. Hedrick and for the widow and children of Ward Roper, canceling the judgment foreclosing the vendor's lien and canceling the sheriff's sale, and enjoining plaintiff in error from prosecuting his suit in Hill county.

On appeal, the judgment of the district court was affirmed by the San Antonio Court of Civil Appeals, 230 S. W. 514. A writ of error was granted Sam Levy.

There was evidence to warrant findings, which should be presumed in support of the trial court's judgment, that plaintiff in error bought the 320 acres of land for an inadequate price; that the widow and children of Ward Roper did not appear, and were not cited, in the foreclosure suit; that no guardian ad litem was appointed for the minors; that the widow and children of Ward Roper had no knowledge of Walden's suit until immediately before instituting proceedings to set aside the decree of foreclosure and the sheriff's sale; and that they were not negligent in failing to learn of same. There was evidence supporting the jury's finding that the sheriff's sale was made without notice to Ward Roper's widow and children. It was conclusively shown that R. L. Hedrick was personally served with citation to answer Walden's suit, and that he made default.

In support of the affirmance of the judgment for defendant in error Hedrick, it is urged: First, that the judgment foreclosing the vendor's lien on the 320 acres of land was void, because of the court's want of jurisdiction over the persons of the widow and children of Ward Roper; and, second, that the requirement of only one final judgment rendered the foreclosure and sale void as against defendant in error Hedrick, as well as against Roper's widow and children.

The Supreme Court has uniformly held that a judgment rendered against a defendant, without citation against him or appearance by or for him, is a nullity.

After deciding that service by the sheriff of one county of a citation, directed to the sheriff of another county, was no service, the court, through Chief Justice Wheeler, said:

"The court therefore had not jurisdiction of the person of the defendant, and the judgment was consequently void." Witt v. Kaufman, 25 Tex. Supp. 386.

The court again declared, in Judge Stayton's opinion in Glass v. Smith, 66 Tex. 550, 2 S. W. 196:

"Jurisdiction over the person of a defendant is acquired by his voluntary appearance, or by the service upon him of such process as the law, provides. In the case before us, Glass had not voluntarily come before the court as a litigant, and thus conferred jurisdiction on the court over his person; nor had he been brought before the court by any process known to the law * * * and the judgment rendered against him, from which he now seeks relief, was and is a nullity."

Judgments rendered against parties, who had not appeared and who had not been lawfully cited, were determined to be void in the following cases: Edrington v. Allsbrooks, 21 Tex. 189; Parker v. Spencer, 61 Tex. 161; Dunlap v. Southerlin, 63 Tex. 42; Fowler v. Simpson, 79 Tex. 617, 15 S. W. 682, 23 Am. St. Rep. 370; Hardy v. Beaty, 84 Tex. 569, 19 S. W. 778, 31 Am. St. Rep. 80; Roller v. Reid, 87 Tex. 76, 26 S. W. 1060; Hopkins v. Cain, 105 Tex. 597, 143 S. W. 1145.

The Supreme Court of the United States likewise treats as void judgments against defendants, neither cited nor waiving citation nor appearing. Windsor v. McVeigh, 93 U. S. 283, 23 L. Ed. 914; Pennoyer v. Neff, 95 U. S. 733, 24 L. Ed. 565; Hovey v. Elliott, 167 U. S. 445, 17 Sup. Ct. 841, 42 L. Ed. 215; Cooper v. Newell, 173 U. S. 571, 19 Sup. Ct. 506, 43 L. Ed. 808; McDonald v. Mabee, 243 U. S. 90, 37 Sup. Ct. 343, 61 L. Ed. 608, L. R. A. 1917F, 458.

The...