Milam Cnty. v. Robertson

• Decision Date: 01 January 1877
• Citation: 47 Tex. 222
• Parties: MILAM COUNTY v. RACHEL ROBERTSON ET AL.
• Court: Texas Supreme Court

47 Tex. 222

MILAM COUNTY

v.RACHEL ROBERTSON ET AL.

Supreme Court of Texas.

1877.

ON THE 30th of March, 1877, a motion was filed, by parties claiming land in privity with appellees, to vacate and annul a judgment rendered on the 28th of May, 1870, which reversed and reformed a judgment of the District Court, and to have the case redocketed, as though no final judgment had been rendered. In support of the motion, it was shown by affidavits that two of the appellees were dead when the judgment was rendered, which fact had been suggested and noted on the minutes of the court before judgment; and that judgment was rendered without making the legal representatives of the deceased, parties. The records of the Supreme Court disclose that the cause was submitted to the Supreme Court by the parties two years after the suggestion of death: Held--

1. On the adjournment of a term of court, at which a final judgment has been rendered in a previously pending cause, the jurisdiction of the court over the case on its merits is exhausted. If there is an error in the judgment, and the court rendering it possesses no appellate revisory power over its final judgments, the error can only be corrected by some superior tribunal, to which revisory power has been committed.

2. When a judgment is based on facts which the court is warranted in presuming, from the record, to exist, and upon the existence of which the jurisdiction of the court or the validity of the judgment depends, as, for instance, that an ostensible party to the proceeding was living, when he was, in fact, dead, such judgment, whether absolutely void or voidable, may be set aside and corrected on a writ of error coram nobis by the court rendering it.

3. But when the error is of law, though touching a matter of fact apparent upon the record, and assignable as error, and is directly passed upon or affirmed by the court, it can neither be reversed or corrected on a writ of error coram nobis, nor by motion after the adjournment of the term at which it was rendered; in such case relief can only be had, if at all, by appeal or writ of error to a superior and supervisory tribunal.

4. A void judgment is a nullity, whether invoked before the tribunal which rendered it, or any other, and though it may have been supposed by the court rendering it to exhaust its jurisdiction over the subject, will not, either in law or fact, curtail the power of that court over matters supposed to have been determined by it, when its jurisdiction is afterwards properly invoked.

5. A judgment in favor of or against a party who is dead, unless his death is shown by the record itself, is at most only a ground for avoiding the judgment, and does not render it absolutely void. Whether the same rule should not apply even when the death is shown by the record, quere?

6. The error of the Supreme Court set forth in the motion in this case, if error at all, was one of fact, and not of law, and it is within the power of the court, in such cases, on motion, supported by affidavit, to revoke the final judgment and recall the mandate of a former term, whether such judgment was absolutely void for want of jurisdiction, or voidable for error in fact, if such fact was unknown to the court, or it can be supposed to have acted unmindful of it. (As to the correctness of this proposition, Associate Justice Moore expresses his doubts.)

7. Whether the alleged error of the Supreme Court in rendering the judgment in this case was one of fact or of law, an application to correct it comes too late, after a delay of seven years, especially when the counsel who make the motion were present in court at the rendition of the judgment, and made no objection to the submission of the case, or its decisions.

8. To sanction such laches by sustaining the motion would set a dangerous precedent, which would be calculated to open the door to fraud.

Associate Justice Moore expressed it as his individual opinion--

1. That it would be a strained and perverted construction of the language of the Constitution to say that the appellate power of the Supreme Court embraced its own judgments.

2. That the final judgment of the Supreme Court upon the merits of a cause are as binding and conclusive on the Supreme Court, after the adjournment of the term at which it is rendered, in reference to the case as presented by the appeal or writ of error, as upon the court below. While this is true, the power of the court is not doubted to amend and correct its entries, on proper application, so as to make its judgment conform to its obvious intent, and the facts of the case as shown by the entire record; or to correct clerical misprisions, or an entry made by fraud or mistake of a judgment never in fact rendered; or to revoke an absolutely void judgment, whether the fact is apparent on the face of the record, or is shown on motion supported by affidavit.

3. If injustice would sometimes result from the want of authority in the court to revoke its final judgments at a subsequent term for error in fact, this is equally true when the court has fallen into an error of law.

4. The sole and entire scope and purpose of a writ of error coram nobis, is to revoke a previous judgment, on account of some matter of fact not shown by the record. If the fact relied upon to show the invalidity of the judgment is exhibited in the record, inasmuch as it there appears that the court has given an erroneous judgment upon the record, the error is of law, and not of fact; and inasmuch as the error to be assigned by the writ could not have been previously at issue, its truth may be denied by the other party. If denied, a trial by jury might be demanded, and the law makes no provision for such a trial before the Supreme Court.

MOTION to vacate a judgment of the Supreme Court. The judgment sought to be vacated was rendered seven years ago, and in a suit instituted by Milam county, to recover certain school lands. The record discloses the following facts:

1. The suit was brought by Milam county, February 24, 1864, against the following-named parties, viz.: Rachel Robertson, Joshua Hightower, Jack Wright, William Gafford, Robert Preters, Aaron Bond, Rachel Maxmie, Calaway Sanders, Haley Sanders, and Abel Sanders. Defendants answered.

2. Abel Sanders was granted permission to intervene as guardian of the minor heirs of J. S. Sanders, viz.: William Sanders, Hugh Sanders, Christopher Sanders, and Joseph Sanders. He claimed one hundred and forty-two acres as the Edmond Bond pre-emption, and one hundred and sixty acres as the Aaron Bond pre-emption.

3. April 5, 1867, Mrs. Robertson appeared as Mrs. Rachel Taylor, alleging her marriage with Taylor, and his abandonment of her.

4. April 8, 1867, Newman Osborne intervened, setting up claim to one hundred and sixty acres.

5. On the same day, Abel Sanders amended, setting up claim to the W. J. King one hundred and sixty acre preemption.

6. Same day, Mrs. Rachel (Robertson) Taylor amended, setting up claim to the Henry Bond 160 acre pre-emption.

7. Same day, Aaron Bond amended, claiming the Benj. Bond 160 acre pre-emption. It was agreed that the pleadings of H. Osborne apply without writing same, and Abel Sanders, guardian, plead anew, claiming as in his original. These were the proceedings up to trial below.

8. A verdict was returned:

For Abel Sanders, for the W. S. King 160 acres,

For Rachel Taylor, for the Henry Bond 160 acres,

For Aaron Bond, for the Benj. Bond 160 acres,

For H. Osborne, for the T. J. Reilly 160 acres,

For Abel Sanders, (guardian) for the Aaron Bond 160 acres,

and for the plaintiff, for the balance of the league. Judgment was rendered, quieting the title, and for costs; and for plaintiff, the balance of the land, and for costs against all the other defendants.

9. Motion for new trial, by plaintiff, was overruled. Errors were assigned, and an appeal bond made payable to Abel Sanders, Rachel Robertson (Taylor), Aaron Bond, H. Osborne, and Abel Sanders, guardian.

10. Abel Sanders, guardian, prosecuted a writ of error in behalf of heirs (142 acres being lost.)

The application to set aside and vacate the judgment rendered by the Supreme Court was filed by Wm. Howard, Wm. A. Leach, Sarah Bond, (widow of Aaron Bond,) Wm. D. Sanders, in his own right, and as guardian for Hugh and Lee Sanders, and I. M. Case, guardian for Joseph L. Sanders, Mahala Sanders, C. L. Sanders, A. R. Sanders, Jesse F. Nutt, and B. H. Shands, March 30, 1877.

They alleged: (1.) That Newton Osborne died January, 1870. (2.) That the Legislature was memorialized for relief July 21, 1870. (3.) That a new suit below was filed April 7, 1876.

The extracts from the minutes of this court show: (1.) Death of Osborne suggested, and parties ordered, April 29, 1868. (2.) Submitted in briefs, April 23, 1870. (3.) Reversed and reformed, April 27, 1870. (4.) Death of Amos Bond suggested, May 28, 1870. (5.) Judgment of April 27 reentered, May 28, 1870.

Hood & McCall, for the motion.--In this cause, we have, as the record affirmatively shows, a joint action and a joint recovery--a joint judgment against all the appellees, while the record itself shows that two out of the four were dead at the time of its rendition, May 28, 1870. We have given, as we hope, in law, a satisfactory excuse for not presenting this application at an earlier date. We now ask this court to grant the application, and in support, merely refer the court to a few of the many decisions on the same question. (See Bissell v. Lavaca, 6 Tex., 54, 55;Alexander v. Barfield, 6 Tex., 400;Martel v. Hernsheim, 9 Tex., 294;Mills v. Alexander, 21 Tex., 162;Moke v. Brackett, 28 Tex. 446.)

Counties were allowed, under the acts of 1839 and 1840, to acquire four leagues of land each, for school purposes, but, as conditions precedent, counties, like individuals, had to do certain things: they had to have their surveys made, and their field-notes recorded and returned to the General Land Office. The...