Mabee v. McDonald

• Citation: 175 S.W. 676
• Decision Date: 14 April 1915
• Docket Number: (No. 2299.)
• Parties: MABEE v. McDONALD.
• Court: Supreme Court of Texas

Page 676

175 S.W. 676

MABEE v. McDONALD.

(No. 2299.)

Supreme Court of Texas.

April 14, 1915.

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

Action by Henry D. McDonald against F. A. Mabee. From a judgment of the Court of Civil Appeals (135 S. W. 1089) reversing a judgment of the county court for defendant, defendant appeals. Reversed, and judgment of the county court affirmed.

Lightfoot, Long & Wortham, of Paris, for plaintiff in error. Moore & Park, of Paris, for defendant in error.

HAWKINS, J.

McDonald sued Mabee on June 5, 1909, in the county court of Lamar county, upon a promissory note for $300, besides interest and attorney's fees, alleged to have been executed by him and one Hollon, and to foreclose a lien under a writ of attachment sued out by plaintiff in said suit and levied upon land in Texas as the property of Mabee. Hollon was alleged to be insolvent and was not made a party defendant.

Mabee answered. Among other defenses which were interposed by him, he pleaded, in bar of plaintiff's action, a former judgment recovered on October 3, 1893, by the plaintiff, McDonald, against him and Hollon in cause No. 5468 in the district court of Lamar county, Tex., for the sum of $431.97; that said judgment was rendered in a suit on the same note upon which this suit is based; and that the debt evidenced by that note was merged in that judgment, and therefore this suit should not be maintained. Said answer alleged that said judgment was against said Mabee and said Hollon personally for the amount stated, and against them and their codefendants in said cause No. 5468 for foreclosure of a vendor's lien upon certain land in Lamar county, Tex., securing said note; that said judgment has never been appealed from and is valid and final; and that said note and plaintiff's cause of action thereon have long since become merged in said judgment, and the matter is res adjudicata.

In response McDonald filed a supplemental petition, alleging, among other things, that, at the time of the institution by him of said cause No. 5468 in said district court, said Mabee was a nonresident of the state of Texas, but that, erroneously supposing him to be a resident of said state, plaintiff so alleged in his original petition in said suit, and in pursuance thereof citation in that cause was issued to Lamar county, Tex., for defendant Mabee, but, upon the sheriff's return thereon being made showing Mabee to be out of said state, plaintiff filed an affidavit stating that Mabee was absent from the state of Texas, and praying that he be cited by publication; that such citation was thereupon issued and published according to law, and thereafter, on October 3, 1893, judgment was duly rendered in said cause against defendants Mabee and Hollon for $431.97, the amount of said note, and against all of the defendants for foreclosure of the vendor's lien upon certain land; that the record in said cause No. 5468 shows and that the judgment therein upon its face shows that defendant Mabee had been cited in said cause by publication only, and also shows upon its face that it was rendered upon such service and upon that only, and that Hollon was personally served with process; and that by reason of said facts said judgment is not and never was a personal judgment against said Mabee, and never had any force or effect, except as a means of reaching, and enforcing said vendor's lien upon, said land.

In reply to said supplemental petition defendant Mabee filed a supplemental answer, in which he excepted to plaintiff's allegation that Mabee was a nonresident of Texas at the time of the institution of said cause No. 5468, as being an attack upon the judgment therein by evidence outside of the record, and alleged that defendant Mabee was a resident of the state of Texas at the institution of said cause No. 5468, and when said affidavit for citation by publication was made, and when said citation was issued and published, and when judgment in said cause was rendered.

This county court case was tried before the court without a jury, and resulted in a judgment in favor of defendant Mabee. That court filed its findings of fact and conclusions of law to the effect that said district court judgment, in cause No. 5468, was a valid judgment, in personam, against Mabee. That trial court found, as facts: That the note sued on in this cause was the identical note which was sued on by the same plaintiff McDonald, in cause No. 5468, in the district court of Lamar county, Tex.; that in said cause (No. 5468) Mabee was duly cited by publication issued on application and affidavit stating that he was absent from the state of Texas; that he was given no other notice of that suit, and did not enter his appearance therein; and that, as was disclosed upon its face, the judgment against Mabee in that cause was based solely upon said citation by publication. The trial court further found, as facts, that on March 6, 1891, the date upon which Mabee joined in the execution of said note, he resided in Lamar county, Tex., and so resided up to April, 1892, when he left that county to establish a home at some other place; that his family continued to reside in Lamar county until the spring of 1894, when they left, and have since had their home in the state of Missouri; that in April, 1892, Mabee left Lamar county and the state of Texas, and remained away until November, 1892, when he returned to Lamar county, and remained there during said month of November, when he again left there and went to St. Louis, Mo., where he remained from January 1, 1893, to January 1, 1894, though his family resided in said Lamar county, whence they removed to St. Louis, Mo., in the spring of 1894; that from January 1, 1893, to January 1, 1894, Mabee was absent from the state of Texas, but that his family resided in Paris, Lamar county, Tex., during that time, and he claimed said Paris as his residence; and that since the spring of 1894 he and his family have resided in St. Louis, Mo. The trial court further found, as facts, that said cause No. 5468 was filed November 30, 1892; that personal citation therein to Mabee and Hollon was issued December 29, 1892, directed to the sheriff or any constable of Lamar county, Tex., returnable to the April, 1893, term, and was returned by the sheriff on December 30, 1892, duly served as to Hollon, but not executed as to Mabee, and with the indorsement as to him, "Learned to be out of the state of Texas;" that McDonald's affidavit for citation by publication for Mabee was made and filed and such citation to Mabee by publication duly issued on February 20, 1893, and was duly published; and that the judgment of October 3, 1893, in that cause, was against said Mabee personally, as well as for foreclosure of the vendor's lien and sale of said land, and awarded execution, generally, against Mabee and Hollon, in the event the land which was ordered sold should bring less than the amount of the judgment. The findings of fact by the Court of Civil Appeals are to the same effect. All material facts as they were so found by the trial court and by the Court of Civil Appeals are accepted and will be treated by this court as the facts of this case.

Upon appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, at Texarkana, that court reversed the judgment of the county court, and rendered judgment in favor of appellant, McDonald; the decision being by a divided court, the majority opinion being by Associate Justice Levy, and the dissenting opinion being by Associate Justice Hodges. McDonald v. Mabee (Civ. App.) 135 S. W. 1089.

McDonald's plea in the county court, setting up invalidity of said district court judgment for lack of sufficient service upon Mabee therein, constitutes an attack, not upon a judgment of a sister state, but upon a domestic judgment. Moreover, it is not a direct, but a collateral, attack; this action having arisen and said plea having been interposed in a court different from that in which the judgment which is therein attacked was rendered. As was well said by Associate Justice Hodges in said dissenting opinion:

"This being an action instituted in the county court, any issue questioning the validity of a judgment rendered in the district court necessarily presents a collateral, and not a direct, impeachment. In a collateral attack the validity of a domestic judgment must be determined by the record itself, and not by evidence aliunde. Martin v. Burns, 80 Tex. 679, 16 S. W. 1072; Murchison v. White, 54 Tex. 82, Treadaway v. Eastburn, 57 Tex. 213; Holt v. Love, 131 S. W. 857; Hardy v. Beatty, 84 Tex. 562, 19 S. W. 778 ; Horst v. Lightfoot 132 S. W. 761. Hence it follows that the findings of the trial court with reference to Mabee's residence at the time of the original suit and the publication of citation are wholly immaterial, and add nothing by way of supporting the judgment from which this appeal is prosecuted."

However, in order that all the facts may be clearly understood, we have thought it best to set them out at length.

Again, as was pointed out in said dissenting opinion:

"The situation presented is somewhat peculiar. The attack upon the validity of that judgment [referring to the judgment is cause No. 5468] is made by the plaintiff, the one who presumably would insist upon its validity, while its validity is asserted by the defendant, the party who would ordinarily be expected to make the assault. That peculiarity, however, will not be considered as affecting the question before the court."

Plaintiff in error, Mabee, brings this case before us for review upon six assignments of error.

The sixth assignment complains of the alleged action of the Court of Civil Appeals in considering the findings of fact by the trial court concerning the actual place of residence of Mabee, apart from what is shown upon that point by the record in said cause No. 5468. It is true that the opinion of...