Mikeska v. Blum

• Decision Date: 13 January 1885
• Docket Number: Case No. 1904.
• Citation: 63 Tex. 44
• Court: Texas Supreme Court
• Parties: JOS. MIKESKA v. LEON & H. BLUM.

63 Tex. 44

JOS. MIKESKA

v.LEON & H. BLUM.

Case No. 1904.

Supreme Court of Texas.

Jan. 13, 1885.

ERROR from Washington. Tried below before the Hon. I. B. McFarland.

Mikeska entered into a written contract with L. & H. Blum, which, among other things, provided as follows: “That any indebtedness from me (Mikeska) to L. & H. Blum then existing, or thereafterto be made, shall be actually due and payable from and after the date of the transaction on which it is based; … that any practicing attorney designated by L. & H. Blum may appear in open court at any term of any court that L. & H. Blum may select, having jurisdiction of the amount sued on, during the term of said court, waive process, accept service and confess judgment against me upon a statement verified by affidavit of L. & H. Blum, or their agent, for the amount sued on and owing, and ten per cent. attorneys' fees additional,” etc.

On the 7th day of September thereafter, 1883, L. & H. Blum filed suit in the district court of Bexar county against Jos. Mikeska, for the sum of $1,595.48, and interest, alleged to be past due, and on the 7th day of September, 1883, L. D. Dibble, an attorney-at-law, was designated in writing by L. & H. Blum as the attorney to appear for Mikeska, to accept service, waive process and confess judgment against him and in favor of L. & H. Blum on said indebtedness. On the same day Dibble accepted service, waived process and confessed judgment against Mikeska for the sum of $1,628.19, principal and interest, and $162.81, being ten per cent. attorneys' fees. On this judgment execution was issued and on the 8th day of September, 1883, levied in Washington county on a stock of goods belonging to said Mikeska.

Mikeska brought this suit in Washington county against L. & H. Blum, to recover damages for an alleged wrongful and malicious levy of a writ of execution issued on the judgment obtained in Bexar county, claiming that the same was null and void. Defendants demurred and filed special pleas to the jurisdiction of the court, claiming the privilege of being sued in the county of their residence, claiming that the judgment rendered in Bexar county was valid, and the proceedings under it by which the sale was made were also valid, and that the district court of Washington county had no power to revise and correct the judgment.

The court sustained defendants' plea to the jurisdiction and dismissed the petition.

Carl Schutze and F. D. Jodon, for plaintiff in error, cited: R. S., art. 1198; Treadway v. Eastburn, 57 Tex., 213;Murchison v. White, 54 Tex., 82; Grubbs v. Blum, Tex. Law Rep., vol. 3, No. 7, p. 428.

Searcy & Bryan, for defendants in error, cited: Crane v. Blum, 56 Tex., 329;Montgomery v. Carlton, 56 Tex., 365;Fleming v. Seeligson, 57 Tex., 525;Brockenborough v. Melton, 55 Tex., 493;Clayton v. McKinnon, 54 Tex., 206;Shaw v. Cade, 54 Tex., 311;Murchison v. White, 54 Tex., 79; Freeman on Judgments, p. 130.

WILLIE, CHIEF JUSTICE.

The appellant claims that the judgment rendered against him in Bexar county, in favor of Leon & H. Blum, was absolutely void, and liable to collateral attack; and that, in attempting to enforce it by a levy upon the property of appellant, the plaintiffs were guilty of a trespass.

Upon this latter ground he claims that the county of Washington had jurisdiction of the cause, the levy having been made in that county.

It is contended that the judgment is void, because no citation was issued in the suit wherein it was obtained; because Mikeska had no notice of the pendency of that suit, and because he did not employ the attorney who confessed the judgment, or authorize him to appear for him in the cause.

In order to render a judgment of the district court of Bexar county liable to impeachment in a collateral action for want of service upon a defendant or notice to him, it is necessary that the want of service or notice should appear upon the face of the proceedings wherein the judgment was rendered.

It is a familiar principle that an attorney properly authorized may waive service for his principal, and it is an express provision of our Revised Statutes that a defendant may appear by an attorney without process and confess judgment in favor of a creditor. It is necessary, in such cases, that the attorney be...