McDonald v. Mabee

• Decision Date: 09 March 1911
• Citation: 135 S.W. 1089
• Parties: McDONALD v. MABEE.
• Court: Texas Court of Appeals

135 S.W. 1089

McDONALD v. MABEE.

Court of Civil Appeals of Texas.

March 9, 1911.

Rehearing Denied April 6, 1911.

Appeal from Lamar County Court; Leslie L. Hardison, Judge.

Action by Henry D. McDonald against F. A. Mabee. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Appellant, by his petition filed on the 5th of June, 1909, sought a recovery against appellee on a promissory note alleged to have been executed by appellee and one D. P. Hollon on March 6, 1891, for the sum of $300, with interest and attorney's fees, if collected by law. Hollon was alleged to be wholly insolvent, and was not made a party to the suit. Appellant sued out an attachment and had the same levied on certain real estate as the property of appellee. Appellee appeared and by his answer pleaded, as material to this appeal, that on October 3, 1893, the appellant obtained judgment against him and Hollon in cause No. 5468 in the district court of Lamar county, Tex., on the note sued on, and with foreclosure of a vendor's lien on certain land for the purchase of which said note was given, and that said judgment was not appealed from and was final, and by reason of which the cause of action asserted by appellant became merged into the judgment and was a complete bar to appellant's suit. Appellant, replying to that part of the answer setting up a former judgment, alleged that at the time of the institution of the suit in the district court appellee was a nonresident of the state of Texas; that, erroneously supposing him to be a resident of Lamar county, Tex., he caused citation to issue to said county, which was not served on appellee, but the return of the officer showed him to be absent from the state of Texas, whereupon appellant made an affidavit in said cause that the appellee was absent from the state of Texas and praying that he be cited by publication, which citation was issued and published as required by law, and that the judgment rendered in said cause against appellee was based on citation by publication, and so recites on its face; wherefore the judgment rendered thereon was not a valid judgment against appellee, except so far as it foreclosed the vendor's lien on the land within the jurisdiction of the court, and would not support an execution against the property of appellee generally.

The case was tried before the court without a jury, and the court found as a fact that appellee, in cause No. 5468 in the district court of Lamar county, Tex., was cited by publication issued on application and affidavit stating that he was absent from the state, and that appellee was given no other notice of the suit and did not enter his appearance therein, and that the judgment against appellee was, as disclosed on its face, based solely upon the citation by publication. The court further found: "I find that F. A. Mabee, at the time he joined in the execution of the note sued on, resided in Paris, Lamar county, Tex., and so resided up to the month of April, 1892, when he left Lamar county, Tex., to establish a home at some other place; but I find that Mabee's family continued to reside in Lamar county, Tex., until the spring of 1894, when they left, and have since had their home in St. Louis, Mo. I find that F. A. Mabee in the month of April, 1892, left Paris and the state of Texas, and remained away until November, 1892, when he returned to Paris and remained in Paris during the said month of November, when he left again and went to St. Louis, Mo., where he remained from January 1, 1893, to January 1, 1894, though his family still resided in Paris, Tex., from which place they removed to St. Louis in the spring of 1894. I find that from January 1, 1893, to January 1, 1894, defendant F. A. Mabee was absent from the state of Texas, but that his family resided in Paris, Tex., during that time and that he claimed Paris, Tex., as his residence, and that since the spring of 1894 he and his family have resided in St. Louis, Mo."

Moore & Park, for appellant. Lightfoot, Long & Wortham, for appellee.

LEVY, J. (after stating the facts as above).

Under proper assignment the appellant challenges the ruling of the court, and contends that the judgment in issue, as far as it operated in personam, was under the facts void for the want of jurisdiction in the court to render such character of judgment. The question presented is to be considered under the conclusive facts that the defendant in the said judgment, though a citizen of Texas and claiming Texas as his residence, was at the time of the suit and publication of the citation and rendition of judgment absent from the state of Texas and in St. Louis, Mo. He was in St. Louis, Mo., from December, 1892, to January 1, 1894. The purpose of his leaving and absence from the state of Texas at the time was, as found by the court, "to establish a home in some other place," and he and his family in the spring of 1894 did remove to St. Louis, Mo., and have since resided there. It was shown that the suit in question was filed on November 30, 1892, to recover the amount of the note and to foreclose a lien on real estate in this state. Personal citation was issued to appellee on December 29, 1892, returnable to the April term of court, 1893. This citation was returned by the sheriff on December 30, 1892, not executed as to appellee, and with the indorsement, "Learned to be out of the state of Texas." Citation by publication, under the statute of this state, then issued on February 20, 1893, and was duly published four weeks, ending March, 1893. Judgment was finally rendered on October 3, 1893, against appellee personally for the amount of the note and execution awarded generally, as well as for foreclosure of the lien and sale of the land. The judgment on its face recited that it was rendered upon citation by publication based on the defendant's being absent from the state of Texas. The defendant in the suit had no notice of the suit, and did not appear,

To make the appeal clear, it is admitted by appellant that the former judgment of the district court in issue was valid to the extent that it foreclosed a lien on the property as a proceeding in rem. It is contended by him that it is invalid as far as it was made a personal judgment, as it was, against appellee for any balance of the original obligation remaining unpaid after exhausting the property on which the foreclosure was had. Appellee at the time of the instant suit was a citizen and resident of Missouri, but appeared and answered and defended the suit. Therefore, without question, appellant had the right to sue and have judgment rendered in his favor in the instant suit for the balance due on the original note, interest, attorney's fees, and costs of court, with foreclosure of his attachment lien, if the former judgment in personam was a nullity for want of jurisdiction. If the former judgment was a valid judgment in personam, then it operated as a merger of the original cause of action, and was a bar to the original suit. The trial court concluded as a matter of law that it was a valid judgment in personam. The facts positively appearing, as they do, upon the record, any presumption of fact that would be required to be indulged in a collateral attack upon a judgment here ceased, and the question presented becomes one of law.

The celebrated case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, has been uniformly regarded as placing beyond question the doctrine that a personal judgment against a nonresident, who was not served within the state and who did not appear or assent to the mode of constructive service, is invalid even in the state where rendered. In deference to the decision, the later decisions in this state have so followed the doctrine, and thus overturned earlier decisions of the state. Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295; York v. State, 73 Tex. 651, 11 S. W. 869; Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80; Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; Railway Co. v. Gay, 86 Tex. 586, 26 S. W. 603, 25 L. R. A. 52. In that case the United States Supreme Court held that the established principle of law there discussed forbids personal judgments against a nonresident upon constructive service only, and that such principle is so far fundamental that a judgment rendered in violation thereof, though authorized by a state statute, violates the requirement of the Constitution as to due process of law. The fundamental principle so declared and applied in the case was, as stated in the opinion at the outset: "The authority of every tribunal is necessarily restricted by the territorial limits of the state in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as a mere abuse." The court stated the rules to be: (1) "That every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory," and (2) "the other principle of law referred to follows from the one mentioned; that is, that no state can exercise direct jurisdiction and authority over persons or property without its territory." And the court remarked, "These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been carried into adjudications in numerous cases," and then quotes for illustration from decision of Mr. Justice Story. As the leading authority for this principle, this case has been numerously applied by the citing cases. Sustaining and declaring the same principle are: Freeman v. Alderson, 119 U. S. 165, 7 Sup. Ct. 165, 30 L. Ed. 372; Wilson v. Seligman, 144 U. S. 41, 12 Sup. Ct. 541, 36 L. Ed. 338; Ellenwood v. Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913; Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. 333, 42 L. Ed. 733. See, also, Galpin v. Page, 18 Wall. 350,...