Marshall v. Lockhead
| Decision Date | 03 January 1952 |
| Docket Number | No. 2994,2994 |
| Citation | 245 S.W.2d 307 |
| Parties | MARSHALL v. LOCKHEAD. |
| Court | Texas Court of Appeals |
W. H. Hall, E. P. Bryan, Dallas, for appellant.
Allen Melton, Thomas Burrus, Dallas, for appellee.
Appellant sued appellee to set aside a prior judgment rendered in a former suit for the collection of delinquent taxes and to recover the title and possession of a certain lot sold and conveyed to appellee under un order of sale issued on the judgment in the prior tax suit. The present case was tried before the court below without a jury and resulted in judgment that appellant take nothing.
Appellant says the judgment in the tax suit was invalid and void in so far as he is concerned, because he was not served with citation and did not enter any appearance in the former suit, and hence he insists the Court did not acquire jurisdiction over his person. On the other hand, appellee says the judgment was not void and hence it not subject to collateral attack in this suit, and that appellant, by accepting the benefits accruing to him under the same, is estopped from asserting in this suit that such judgment is void or invalid.
The record before us discloses that on May 10, 1945, a final judgment was rendered in the 44th Judicial District Court of Dallas County, whereby the court found the amount of delinquent taxes, penalties and interest due and owing to the State of Texas and certain of its political subdivisions by reason of the ownership of the two lots therein described, being hereafter referred to as Lots 6 and 18. The judgment recites that defendants, C. B. Marshall and wife, Isabelle Marshall, had been duly cited in terms of law to appear but had wholly made default. The court found the amount of taxes, penalties and interest due against each of the two lots, decreed a foreclosure of the tax lien on each lot as against the defendants and directed that an order of sale be issued for each lot.
In pursuance of an order of sale issued on the above judgment, the sheriff of Dallas County sold Lot 6 to one George A. Harnack on July 3, 1945 for the sum of $1160.00. Of this amount the sum of $530.59 was paid to the State of Texas and others in satisfaction of the taxes due on Lot 6, and the balance thereof in the sum of $626.41 was paid into the registry of the court for the former owner of said lot. Thereafter, on April 6, 1948, C. B. (Bruce) Marshall, the appellant herein, applied to the 44th Judicial District Court for an order granting him permission to withdraw such excess money from the registry of the court as the former owner of Lot 6. The court granted the application, appellant withdraw said sum of $626.41 from the registry of the court, appropriated the same to his own use and benefit, and he has not returned or offered to return the same, or any part thereof, into court. In pursuance of another order of sale issued on the above judgment, the sheriff of Dallas County sold and conveyed Lot 18 to appellee and it is this lot which appellant seeks to recover in the present suit.
In our opinion, the trial court did not err in rendering judgment that app...
To continue reading
Request your trial
-
Tapp's Estate, Matter of
...Little Rock, 245 Ark. 837, 434 S.W.2d 614, 615(1, 2) (1968); Burgess v. Nail, 103 F.2d 37, 44 (10th Cir. 1939); Marshall v. Lockhead, 245 S.W.2d 307, 308 (Tex.Civ.App.1952); Crain v. Foster, 230 Ark. 190, 322 S.W.2d 443, 445 (1959); 46 Am.Jur.2d Judgments § 51, p. 350; and § 629, p. 788; 49......
-
Goodson v. Castellanos
...with position previously taken for purpose of avoiding corresponding effects or obligations); Marshall v. Lockhead, 245 S.W.2d 307, 308 (Tex.Civ.App.-Waco 1952, writ ref'd n.r.e.) (one who accepts and retains fruits of judgment is estopped from later asserting its invalidity); see also V.C.......
-
Golden v. Golden, 20046
...Little Rock, 245 Ark. 837, 434 S.W.2d 614, 615[1, 2] (1968); Burgess v. Nail, 103 F.2d 37, 44 (10th Cir.1939); Marshall v. Lockhead, 245 S.W.2d 307, 308 (Tex.Civ.App.1952); Crain v. Foster, 230 Ark. 190, 322 S.W.2d 443, 445 (1959); 46 Am.Jur.2d Judgments § 51, p. 350; and § 629 p. 788; 49 C......
-
Izen v. Ryals
...that one who accepts the fruits of a judgment is estopped from asserting its invalidity. See Marshall v. Lockhead, 245 S.W.2d 307, 308 (Tex. App.—Waco 1952, writ ref'd n.r.e.); Mueller v. Banks, 332 S.W.2d 783, 786 (Tex. App.—San Antonio 1960, no writ). Such cases are distinguishable; the T......