Parker v. Scobee
| Decision Date | 26 February 1931 |
| Docket Number | No. 1021.,1021. |
| Citation | 36 S.W.2d 303 |
| Parties | PARKER et al. v. SCOBEE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hill County; Walter L. Wray, Judge.
Suit by Mrs. Myrtle Scobee and others against Mrs. Mollie Parker and others. From a judgment for plaintiffs, certain defendants appeal.
Reversed and remanded.
John Abney, of Hillsboro, for appellants.
J. Fred Rose, of Whitney, for appellees.
This was a suit brought in the district court of Hill county by Myrtle Scobee and others against Mollie Parker and others for the partition of certain land in Hill county. Judgment was for the plaintiffs for the partition of the land. Mollie Parker and her husband, A. B. Parker, and Cora Darnell, three of the named defendants, have appealed.
The petition named as defendants, among others, "the child or children of Will Darnell, deceased, and the child or children of Lena Heath, deceased, whose names and residences are unknown to plaintiffs." The citation by publication described the defendants in like manner. These defendants did not make their personal appearance, but were represented by an attorney appointed by the court for that purpose. The judgment of the court adjudged to the children of Will Darnell, deceased, and the children of Lena Heath, deceased, an interest in the property. The court in its findings of fact did not find whether Will Darnell or Lena Heath had any children, nor, if such children ever existed, whether they were living or dead.
Revised Statutes, article 2040, provides that where property in this state has accrued to the heirs as such of any deceased person, any party having a cause of action against them relative to such property, if their names be unknown to him, may bring an action against them, their heirs or legal representatives, "describing them as the heirs of such named ancestor." Upon the making of proper affidavit citation may be had by publication. Revised Statutes, article 6085, provides that if the plaintiff, his agent or attorney, at the commencement of any suit or during the progress thereof for the partition of land, shall make affidavit that an undivided portion of the land described in the plaintiff's petition in said suit "is owned by some person unknown to affiant," the service of citation may be had by publication.
In the case at bar the plaintiffs did not comply with the provisions of article 6085 by alleging that the property was owned by some person unknown to the plaintiffs, but on the contrary alleged that an interest in the property belonged to the children of Will Darnell, deceased, and the children of Lena Heath, deceased. Neither did the plaintiffs comply with the provisions of article 2040 by bringing the suit against the unknown heirs of Will Darnell, deceased, and Lena Heath, deceased. The names of the children were not given in the petition as is required for citation by publication against a defendant whose residence is unknown, as is required by article 2039.
Citation by publication was unknown to the common law. It derives its authority solely from the statutes. Since statutes authorizing citation by publication are in derogation of the common law, they are to be strictly construed, and only those persons who plainly come within the terms of the statutes may be served with process by publication. 50 C. J. 499. In 50 C. J. 498, it is said:
See also Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959; Davenport v. Rutledge (Tex. Civ. App.) 187 S. W. 988; Harris v. Hill, 54 Tex. Civ. App. 437, 117 S. W. 907.
As was said by the Supreme Court in Edrington v. Allsbrooks, 21 Tex. 189: "Notice by publication is, at best, but a miserable substitute for personal service." Where the statute provides for such service, the method provided therein admits of no substitute. We know of no statute that authorizes citation by publication against "the child or children" of a deceased person. Since the heirs of Will Darnell, deceased, and Lena Heath, deceased, owned an interest in the property, they were necessary parties to the suit and a judgment against them without proper service was void. Hopkins v. Cain, 105 Tex. 591, 143 S. W. 1145; Hess v. Webb (Tex. Civ. App.) 113 S. W. 618.
The distinction between "the...
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