Masterson v. Ashcom

• Decision Date: 08 March 1881
• Docket Number: Case No. 1317.
• Citation: 54 Tex. 324
• Parties: THOMAS G. MASTERSON v. JOHN C. ASHCOM.
• Court: Texas Supreme Court

54 Tex. 324

THOMAS G. MASTERSON

v.JOHN C. ASHCOM.

Case No. 1317.

Supreme Court of Texas.

Mar. 8, 1881.

APPEAL from Brazoria. Tried below before the Hon. Wm. H. Burkhart.

April 6, 1872, the estate of T. A. Smith, deceased, for use of appellant, Thomas G. Masterson, recovered in justice's court, precinct No. 2, Brazoria county, judgment for $112.52, principal and interest, besides costs, against appellee, John C. Ashcom.

The transcript from the justice's court shows that citation issued for Ashcom March 13, 1872, and due return of service on him March 16, 1872, by the sheriff.

The judgment in that court recites that the “cause came on to be heard; Shapard, attorney for plaintiff; Duff for defendant. Defendant pleaded to the jurisdiction of the court, which was overruled, and after hearing the testimony and there being no offsets,” etc.; then follows formal entry of judgment.

The transcript further shows that notice of appeal was given; that execution issued June 28, 1873, and was returned January 27, 1875, not satisfied.

Further execution issued January 16, 1880, and was levied upon property of Ashcom.

The present suit was brought by Ashcom, February 26, 1880, in the district court of Brazoria county, against Masterson, for whose use suit was brought in the justice's court, and against Sharp as sheriff, to whom said last execution issued, to enjoin and restrain the collection of the same, and to set aside the judgment of the justice's court, on the grounds, substantially, that Ashcom had never been served with process; that he was not at the date of said judgment a citizen of Brazoria county, but had removed to Galveston county; and that upon a just settlement he would not have been indebted any amount to the estate of Smith.

There was no allegation which negatived the appearance by attorney of Ashcom in the justice's court, as recited in the judgment.

The testimony shows that within a short time previous to the rendition of that judgment, Ashcom had resided in precinct No. 1, in Brazoria county, and that judgment had been rendered against him in that precinct, and tends to prove that there was a vacancy in the office of justice of the peace in that precinct when the account against Ashcom was filed for suit with the justice in precinct No. 2.

The only testimony offered to disprove the return of the officer and the recitals in the judgment was that of Ashcom himself, and there was no evidence as to any defense to the original cause of action.

An injunction was granted in this suit, and on final hearing in the district court, judgment on verdict of a jury was rendered for Ashcom, the justice judgment declared null and void, and the injunction made perpetual, from which this appeal is prosecuted.

Thomas G. Masterson and John A. Ballowe, for appellant.

J. H. Norris, for appellee.

I. A justice of the peace cannot act beyond his own precinct (unless within one of the exceptions), and process issued to be served on a party outside of his precinct is a nullity, and any judgment rendered thereon is void ab initio. R. S., art. 1556; 8 Tex., 122;12 Tex., 124;14 Tex., 345.

II. This was not a collateral proceeding, but a direct suit by injunction, directly attacking the validity of the judgment, for want of jurisdiction by the justice over the person of appellee. 18 Tex., 31;24 Tex., 615;27 Tex., 276;31 Tex., 621.

III. The filing of an account is not in a justice court the beginning of a suit; a suit is commenced by the issuance of citation. 3 Tex., 492.

IV. If a justice of the peace acts in any matter over which he has no jurisdiction, the proceedings are absolutely void. 21 Tex., 561;19 Tex., 337.

BONNER, ASSOCIATE JUSTICE.

It is contended by appellee Ashcom, defendant in the judgment before the justice's court, that as he did not reside in precinct No. 2, that court had no jurisdiction over him, and that consequently the judgment complained of was null and void.

There is a marked distinction between the question of mere personal privilege to be sued within the precinct or county of residence, and which privilege may be expressly or impliedly waived, and that of jurisdiction proper, which cannot be conferred, even by express consent.

The justice's court had jurisdiction over the subject matter, and if Ashcom was served with process, this would have given the court jurisdiction over the person also, even though the suit had been irregularly brought in a precinct or county other than that of his residence, if he failed to appear and plead in abatement his privilege to be sued elsewhere. Morris v. Runnels, 12 Tex., 177; R. R. Co. v. Graves, 50 Tex., 201.

We do not find it necessary to decide whether Ashcom, the defendant in the judgment at law in the justice court, can, by a proceeding in the district court, in the nature of a bill in equity for this purpose, controvert the return of the sheriff showing service upon him, and prove by parol that, in fact, he was not served, and did not appear and defend the suit.

This is an important question which we do not wish to pass upon until absolutely necessary, and after full argument.

We deem it proper to here note the following, among other authorities, which in our investigation were found pertinent to this question: Owens v. Ranstead, 22 Ill., 161;Ridgeway v. Bank of Tenn., 11 Humph., 525, affirmed in Bell v. Williams, 1 Head, 229; Driver v. Cobb, 1 Tenn. Ch. (Cooper), 490; Crafts v. Dexter, 8 Ala., 767; Stubbs v. Leavitt, 30 Ala., 352; Newcomb v. Dewey, 27 Iowa, 381; Harshey v. Blackmarr, 20 Iowa, 161; Gregory v. Ford, 14 Cal., 138; Bank v. Eldridge, 28 Conn., 556; Propst v. Meadows, 13 Ill., 157; Walker v. Gilbert, Freeman's Ch., 85; Wilson v. Montgomery, 14 Sm. & Marsh., 205; Walker v. Robins, 14 How., 584;House v. Collins, 42 Tex., 492;Randall v. Collins, 52 Tex., 435 (same case, present term); Freeman on Judgments, § 495; White & Tudor's Lead. Cases in Equity, 4 Am. ed., vol. 2, part 2, p. 1365; Well's Res Adjudicata, ch. 35.

Under our statute a justice of the peace is required to keep a docket, in which it is made his duty to enter, among other things, the names of the parties; the issuance of process, its nature and when returnable; the appearance of the parties, either with or without citation; and the judgment of the court. Pasch. Dig., art. 1182; Id., 6292; R. S., art. 1150.

If it be conceded that in a proper case in a court of equity, the defendant to a judgment at law would be permitted, even in a justice court, to show that he was neither duly cited, nor had appeared in the cause, this, upon principle and the authority of analogous cases, should be permitted only upon full and distinct averments supported by clear and satisfactory evidence. Randall v. Collins (decided at present term); Driver v. Cobb, 1...