Martin v. Burns

• Decision Date: 05 May 1891
• Citation: 16 S.W. 1072
• Parties: MARTIN v. BURNS <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 1072

MARTIN v. BURNS et al.

Supreme Court of Texas.

May 5, 1891.

Commissioners' decision. Appeal from district court, Mitchell county; WILLIAM KENNEDY, Judge.

R. H. Looney, for appellant. Ball & Burney, for appellees.

MARR, J.

The sole and decisive question for our determination on this appeal is as to the validity of the judgment of the county court of Mitchell county rendered on the 18th day of January, 1883, (upon service by publication,) in cause No. 27, pending in said court, wherein W. H. Snyder was plaintiff, and S. P. and John Crockett, composing the firm of S. P. Crockett & Co., were defendants, in personam, for $904.83, and the consequent validity or not of the subsequent execution, levy, and sale of the land in controversy thereunder, as well as the sheriff's deed, under all of which the appellees claim said land, and recovered it in the court below. There is no statement of facts, but the record brings up the trial judge's conclusions of fact and law. It does not appear that the above-mentioned judgment contained any recitation or finding of the manner in which the citation was made, or of its character. The records of that court, however, as found by the court below, showed that it was by publication on an affidavit that the residence of the defendants were unknown, not that they, or either of them, were non-residents, or absent from the state. There was no fact affirmatively appearing on or disclosed by the record showing, according to the findings of the district judge, that the defendant S. P. Crockett, who is admitted to be the common source of title, and who owned the land when said suit was filed, was a non-resident of this state. The following are the conclusions of law found by the district court on the above state of the case, viz.: "The record in the cause No. 27, W. H. Snyder v. S. P. Crockett & Co., not showing affirmatively that the defendants were non-residents of the state, in a collateral proceeding, it will be presumed that the court rightfully exercised jurisdiction, nor can a fact rendering such judgment invalid be shown by parol, or by evidence aliunde the record. I therefore conclude that said judgment was not void, and it cannot be attacked in this case; second, the title of defendants being the older one, they are entitled to judgment in this case."

Since the decision of the supreme court in Guilford v. Love, 49 Tex. 715, the county court has been uniformly held to be a court of record and of general jurisdiction in its appropriate sphere, under the constitution and laws. Its judgments, therefore, on collateral attack, are entitled to all of the absolute presumptions that obtain in favor of the judgments of other domestic courts of general jurisdiction. Where the case is within the jurisdiction of the court, and no fact appears affirmatively in the record sufficient to defeat the jurisdiction, evidence aliunde, even where the judgment is silent as to the process or its service, will not be heard to contradict the presumption of regularity, or to establish a fact outside of the record, for the purpose of showing that jurisdiction over the person did not in fact attach and thus impeach the judgment. If the judgment itself finds and recites a valid notice, or citation and service, that controls the balance of the record; otherwise if it recites an invalid citation, or names the precise character thereof. If the judgment is silent, then the whole process in the record may be examined. This is as far as the courts can go when the proceeding is collateral. These rules of decision are too well established in this state to need any further discussion. Murchison v. White, 54 Tex. 85; Treadway v. Eastburn, 57 Tex. 209; Fowler v. Simpson, (Tex.) 15 S. W. Rep. 682; Wilkerson v. Schoonmaker, 77 Tex. 615, 14 S. W. Rep. 223, and authorities cited. As to the admission of evidence aliunde, there is now a recognized exception, — where the judgment assailed is that of a court of a justice of the peace, and where such judgment is silent as to the fact of notice, (Wilkerson v. Schoonmaker, supra;) but this does not obtain when the judgment is that of a court of record and of general jurisdiction. It follows that, as the records of the county court do not affirmatively show that S. P. Crockett was a non-resident of this state when the citation was made, the rulings of the court below, in holding that the judgment of the county court of Mitchell county was...