Nymon v. Eggert

• Citation: 154 S.W.2d 157
• Decision Date: 15 May 1941
• Docket Number: No. 4013.,4013.
• Parties: NYMON et al. v. EGGERT et al.
• Court: Texas Court of Appeals

154 S.W.2d 157

NYMON et al. v. EGGERT et al.

No. 4013.

Court of Civil Appeals of Texas. El Paso.

May 15, 1941.

Supplemental Opinion October 4, 1941.

Appeal from District Court, Nueces County; George C. Westervelt, Judge.

Suit by K. H. Nymon and others against Edgar H. Eggert and others, to set aside a default judgment in tax suit and sheriff's deed thereunder as a cloud upon plaintiffs' title and for such other relief as plaintiffs might show themselves entitled to. From a judgment dismissing the suit on ground of lack of jurisdiction, the plaintiffs appeal.

Affirmed.

C. H. Chernosky, of Houston, and Neel, King & Rachal, of Corpus Christi, for appellants.

B. D. Tarlton, T. H. Burruss, and Ward & Brown, all of Corpus Christi, for appellees.

PRICE, Chief Justice.

We have heretofore filed an opinion herein reversing and remanding this cause. Careful consideration of the motion for rehearing herein has convinced us that the disposition made of the cause was erroneous. Hence the motion for rehearing is granted, the original opinion withdrawn, and this opinion substituted therefor.

This is an appeal from the judgment of the Criminal District Court of the Twenty-eighth Judicial District of Nueces County dismissing this suit on the ground of lack of jurisdiction.

There has been filed by one or more of the appellees a motion to dismiss this appeal on account of lack of jurisdiction in this Court. The question raised by the motion being the same as that raised by the appeal, the motion was passed for consideration with the merits of the case.

Plaintiff, K. H. Nymon, joined by several others, filed this suit against a number of defendants alleged to hold rights in certain lands by virtue of a judgment of the court wherein the State of Texas was plaintiff, and said Nymon, plaintiff here, was defendant. The judgment as shown by the allegation of plaintiff's petition was for the foreclosure of an alleged tax lien for a number of years, including the years 1897, 1912, 1913, etc. The suit was filed on the 19th day of February, 1926. In the petition Nymon was alleged to be a resident of Hennepin County, Minnesota. On February 23rd, 1926, the County Attorney filed an affidavit in the case wherein he stated that the residence of Nymon was unknown, and prayed for citation by publication. On that same date the Clerk of the Court issued a citation addressed to Nymon and to all persons owning or having or claiming any interest in the lands involved, and in the citation the sheriff was directed to serve same by having same published in some newspaper for three consecutive weeks previous to the return day thereof. This citation or notice was published in the Corpus Christi Evening Times on February 26th, March 5th, and March 12th, 1926, according to the affidavit of C. Everett, general manager of the Corpus Christi Evening Times. No return on the citation or notice is alleged to appear in the record; on May 7, 1926, the County Attorney asked and was granted leave to file a trial amendment seeking to recover taxes for the year 1916; on the same day judgment was entered against defendant for taxes for all of the years sued for in the original petition and for the year 1916, which had not been sued for in the original petition; that no process of any kind had been issued on the trial amendment. The judgment is for taxes for the total sum of $229.35, together with a foreclosure of a lien on the property involved herein. The petition further shows that order of sale issued on said judgment and the property was sold thereunder on the 7th day of September, 1926, to Mrs. Emma H. Sands for the sum of $330; that thereafter the sheriff duly executed his deed to her. The sheriff's deed, order of sale, execution and sheriff's return are charged to be void for the following reasons:

"(a) No citation was ever had in said cause, so as to confer jurisdiction upon this court to render judgment in this cause.

"(b) No citation was ever attempted to be issued or served after the filing of said trial amendment.

"(c) The affidavit of Linton Savage, as County Attorney was insufficient to invoke the powers of this court to have citation issued by publication."

Plaintiffs offered to do equity, and tendered into court such sum or sums of money as the defendants may be justly entitled to. However, they sought to have the rents and revenues collected from the property by defendants to be taken into account in determining the sum, if any, due from them.

It is alleged that all of the instruments set forth in the petition and each and every instrument emanating under them constitute a cloud upon plaintiffs' title and should be removed.

The specific prayer of the petition is the setting aside of the deed from the sheriff to Mrs. Emma H. Sands, the cancellation of each and every other instrument emanating under such deed by which defendants are asserting title to the property, cancellation of the order of sale issuing out of the cause, the execution and sheriff's return thereof, and for such other relief, general and special, in law and in equity, that plaintiffs may show themselves justly entitled to.

It appears that the plaintiffs (appellants here) claim title under Nymon; that defendants claim under Mrs. Emma H. Sands.

Subsection 1, Section 28, of Article 199, Vernon's Civil Statutes is as follows:

"28.—Nueces, Kleberg and Kenedy.

"1. Criminal District Court.—There is hereby continued as established for the counties of Nueces, Kleberg, Kenedy, Willacy and Cameron a criminal district court, which shall have and exercise all of the criminal jurisdiction now vested in and exercised by the district court of the Twenty-eighth Judicial District of Texas, and said Criminal District Court shall try and determine all causes for divorce between husband and wife and adjudicate property rights in connection therewith in said counties, and try and determine all causes for the collection of delinquent taxes and the enforcement of liens for the collection of same. All appeals from the judgments of said courts shall be to the Court of Criminal Appeals, except appeals in divorce cases and suits for the collection of delinquent taxes, which shall be to the Court of Civil Appeals under the same rules and regulations as now or may hereafter be provided by law for the appeals in civil cases from district courts."

Clearly this is not a suit for the collection of delinquent taxes and the enforcement of liens for the collection of same. The suit in which the judgment in question was entered clearly was such an action.

Appellants sought to quiet the title to the land on the ground that the court rendering the tax judgment was without active jurisdiction.

A perusal of the Act above quoted constituting the court in question clearly gives it jurisdiction of the subject matter of the action to recover the taxes and foreclose the lien therefor.

Appellees, on the other hand, contended that the petition of appellants discloses a lack of jurisdiction in the court over the subject matter of this suit. It is elementary that jurisdiction over the subject matter of an action is as a rule determined by the allegations of the petition considered in the light of the power to hear and determine conferred by the State upon the court in question. 11 Tex. Jur., § 14, p. 720; § 26, p. 739.

First to be considered, then, is the subject matter of this action as projected by plaintiffs' petition. It should be borne in mind at all times that the question is not whether appellants stated a cause of action, but as to whether the court had the power to determine whether they did or did not so state a cause of action.

A perusal of the Act above quoted leaves it clear that the court did not have the jurisdiction to try title to lands or to quiet title thereto. Jurisdiction was given, it is true, to foreclose liens on land for taxes.

In our opinion it has and had jurisdiction, when properly invoked, to review its judgments entered at a previous term on account of fraud, accident or lack of jurisdiction. In our opinion this is an inherent attribute of the court as such. Roller v. Wooldridge, 46 Tex. 485; Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100; Alvord Nat. Bank v. Waples-Platter Grocery Co., 56 Tex.Civ.App. 225, 118 S.W. 232.

We think it fundamental, likewise, that a court may have jurisdiction to enter a judgment and not have jurisdiction to adjudicate as to rights and titles arising from the execution thereof. For instance, a probate court may have the power to order the execution of a conveyance, but it lacks the plenary power to determine the effect in law of such conveyance.

If the judgment is voidable the only substantial ground for equitable attack thereon is the inferential averment that the property was offered for sale and sold without notice to Nymon. Throughout this case we are assuming that all facts stated in plaintiffs' petition are true. There appears no averment that the taxes were not due and were not a lien on the property; no averment that the property did not bring its fair market value when sold; no averment that the purchase was other than bona fide. Mrs. Sands is not made a party. It is not averred that she does not retain interest under her purchase, or that as to such interest she has parted with she is free from liability with reference thereto.

Plaintiffs' petition was filed in the trial court on March 11, 1939, the judgment was entered in May, 1926, and no excuse is offered for their failure to learn of same before the petition was filed. It is averred that each and all appellants were without knowledge of the tax suit prior to December, 1938. These observations might be more appropriate in a discussion of a ruling on a general exception. The trial court sustained a plea of jurisdiction to the appellants' petition. However, we think it may aid in the construction of the petition.

This petition seeks to have the court set aside and cancel...