Moore v. Perry

• Decision Date: 02 April 1896
• Citation: 35 S.W. 838
• Parties: MOORE et al. v. PERRY et ux.
• Court: Texas Court of Appeals

35 S.W. 838

MOORE et al. v. PERRY et ux.

Court of Civil Appeals of Texas.

April 2, 1896.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by John Perry and Lucy Perry against W. J. Moore and others to set aside a judgment on a street improvement certificate and a sale thereunder. There was a judgment for plaintiffs, and defendants appeal. Modified.

Frank Moore, Coleman & Ross, and Pendarvis & Halligan, for appellants. E. P. Hamblen, for appellees.

GARRETT, C. J.

John Perry and his wife, Lucy Perry, brought this action in the district court of Harris county on March 16, 1894, against Isaac Heffron, W. J. Moore, and Frank Moore, to set aside a judgment and decree of said court rendered against them by default January 15, 1894, in the suit of Isaac Heffron v. John Perry and Lucy Perry, for the amount of a street improvement certificate, and foreclosure of a lien therefor on their homestead in the city of Houston, and to set aside a sale of said property, made by the sheriff of Harris county in pursuance of said decree, at which W. J. Moore became the purchaser, and to cancel the sheriff's deed to said Moore. The cause was submitted without a jury, and plaintiffs recovered judgment, setting aside the judgment in the foreclosure suit, and reinstating the case; also setting aside the sheriff's sale. The property upon which the lien for street improvement was established was the homestead of the plaintiffs, and was not subject to a lien for the improvement certificate, which was sued upon; but it did not so appear from the record in the suit. The grounds presented for setting the judgment aside were: (1) The judgment was void, because the citation did not have the seal of the court affixed to it. (2) The petition did not set out a good cause of action, and was not sufficient to sustain a judgment by default. (3) The certificate set out in the petition showed that the property upon which the lien was sought to be established was owned by John and Lucy "Berry," and not "Perry," and the citation recited that the certificate was issued by the "Mayor and Board of Aldermen of the City of Houston," when the name of the corporation was the "Mayor, Aldermen, and Inhabitants of the City of Houston." The petition in the foreclosure suit against John Perry and Lucy Perry was filed May 16, 1893, and represented that plaintiff was the owner and holder of a certain street improvement certificate issued by the city of Houston to the plaintiff May 11, 1891, a copy of which was set out, certifying that Isaac Heffron, or the holder thereof, was entitled to the sum of $49.69 from the owner or owners of the premises described, for sewer improvements made on Jackson and Hadley streets, in the La Branch sewerage district, in the city of Houston, Harris county, Tex., under a certain contract between Heffron and the city, and referred to an ordinance authorizing the contract. The land was described, and it was stated in the copy that the owner was John and Lucy Berry. The manner and time of payment was set out, and the certificate contained the recital that it was "issued under authority of section 23 et seq. of the charter of the mayor, aldermen, and inhabitants of the city of Houston, and the sum of money for which the same is issued, being the proportionate cost of said improvement assessed against the property herein described, as aforesaid, is a tax against the owners thereof, and a lien upon said property, as provided in said section of said charter." The petition further represented that said certificate was issued in accordance with the provisions of the charter of Houston; that all preliminary steps prescribed by the charter in relation to the construction of the improvements to pay for which the assessment had been made, and in relation to the making of said assessment, and in all the requirements and prerequisites of law necessary to authorize the issuance of the certificate, and to give validity to the same, were duly performed; that, by reason of the proceedings, and the execution and delivery of the certificate to said Isaac Heffron, the owner or owners of the property described became liable to pay the said Isaac Heffron the sum of money and interest specified in the certificate, and a lien was fixed upon the property to secure the payment of the same, etc.; that the defendants were then the owners of the property described in the certificate, and, as such, were liable for the payment of said sums due, as stated; and that, though often requested, they had failed to pay the same, etc. A citation was issued July 26, 1893, in due form, except that it did not have the seal of court affixed to it. John Perry and Lucy Perry were cited to appear at the next regular term of the district court of Harris county, to be held on the first Monday in October, 1893. It was duly served on them on the day it was issued. The defendants failed to appear, and judgment was rendered against them by default for the amount of the certificate, with foreclosure of a lien on the property. There is nothing in the petition, citation, or judgment to show that the property was the homestead of John Perry and Lucy Perry, or that they were man and wife, or that they resided on the property. There was a notation on the original petition "9-26-93," and there was evidence that it was the custom, in the office of the district clerk, to note the date of the issuance of citations in that manner; but the court below found that the citation issued without seal July 26, 1893, was the only citation that had been issued in the case, and so found in accordance with the weight of the evidence. The judgment was rendered on the 15th day of January, 1894, and contained the recital: "And the defendants John Perry and Lucy Perry, though duly and legally cited to appear and answer herein more than ten days prior to the 4th day of December, 1893, failed so to do, but wholly made default," etc.

An order of sale was regularly issued upon the said judgment, and the property duly advertised for sale on March 6, 1894, and was then sold to the defendant W. J. Moore for the sum of $375, at the bid of the defendant Frank Moore, who was his agent, and the sheriff executed a deed therefor to said W. J. Moore. After the sale, but before the money had been paid, John B. Williams, a deputy of the district clerk, called Frank Moore's attention to the fact that the citation was without a seal. The property was worth about $4,000, with a vendor's lien on it for about $900. There is no reason alleged or shown, in addition to inadequacy of price, why the sale should be set aside. John Perry testified that he did not know that his property was advertised for sale until the day after it was sold, and then went to see Mr. Dennis, upon whom he relied to look after his sewerage tax, and had promised to protect his sewer for him. While the suit instituted by the plaintiffs in this case was a direct attack upon the judgment and sale in the foreclosure suit, it was not authorized by law. A bill of review to revise a judgment for errors apparent upon the face of the record is not recognized in this state. Seguin v. Maverick, 24 Tex. 526. Plaintiffs' remedy was by appeal or writ of error. The practice of writ of error coram nobis could not authorize the suit, because, as stated, the error was apparent upon the face of the record. Milam Co. v. Robertson, 47 Tex. 231. The citation was a part of the record, and showed for itself that the seal of the court had not been affixed thereto; and the fact that the omission was not called to the attention of the court, and that the judge believed that there was a valid citation when the judgment was entered, cannot affect the question. The error was apparent, and, if the cause...