Perez v. E. P. Lipscomb & Co.

• Decision Date: 12 November 1924
• Docket Number: (No. 7220.)
• Citation: 267 S.W. 748
• Parties: PEREZ et al. v. E. P. LIPSCOMB & CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

267 S.W. 748

PEREZ et al. v. E. P. LIPSCOMB & CO.^*

(No. 7220.)

Court of Civil Appeals of Texas. San Antonio.

November 12, 1924.

Rehearing Denied January 7, 1925.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by E. P. Lipscomb & Co. against A. S. Perez and others, in which defendants filed a cross-action in nature of a bill of review to set aside judgment rendered for plaintiff. From a judgment dismissing their cross-action, defendants appeal. Reversed and remanded.

W. W. King, of San Antonio, for appellants.

E. P. Lipscomb, of San Antonio, for appellee.

COBBS, J.

This was an action in trespass to try title brought on the 18th day of October, 1922, in the Seventy-Third judicial district court of Bexar county, Tex., by E. P. Lipscomb & Co., plaintiff, against Alfred S. Perez, unknown heirs of Alfred S. Perez, Florentina de Perez, unknown heirs of Florentina de Perez, and unknown owners, defendants, for lot No. 4, block 2, city block 752, city of San Antonio, Bexar county, Tex. Service was had upon the defendants by publication.

Judgment was duly rendered in favor of plaintiff against the defendants for title and possession of said property on February 2, 1923. Thereafter, on the 25th day of September, 1923, the defendants filed motion in the nature of bill of review to set aside said judgment, upon the ground that at the time of the institution of said suit, and when the citation for publication was issued, plaintiff knew who were the heirs of Florentina Valdez de Perez, and knew their places of residence, and could have obtained personal service on them had he seen proper so to do, and by reason thereof said judgment was void.

A writ of possession was issued on the judgment, and on November 22, 1923, appellants filed a motion to dismiss the writ of possession, and after a hearing thereon it was sustained by the court.

Appellants' cross-action was in the nature of a bill of review, and among other things alleged:

"That E. P. Lipscomb & Co., on the 18th day of October, 1922, brought suit against Alfred S. Perez, unknown heirs of Alfred S. Perez, Florentina Valdez de Perez, unknown heirs of Florentina Valdez de Perez, and unknown owners, for the title and possession of lot No. 4, block 2, city block 752, in the city of San Antonio, Bexar county, Tex.

"That the plaintiff in the above-styled cause, caused said complainants to be cited by publication, and that none of them were served with process, and none of them appeared and answered in said cause, and none of them had any notice of the filing of said suit and rendition of the judgment therein.

"That at the time said petition was filed, and at the time said citation by publication was made and returned, E. P. Lipscomb, a member of the said firm, made affidavit for issuance of citation by publication, actually knew who were the heirs at law of Florentina Valdez de Perez and knew their places of residence, and could have obtained personal service on them had he seen proper so to do."

Among other defenses set up in appellee's answer was a general demurrer presented and urged to the appellants' bill of review, which the court sustained, and upon the refusal of appellants to amend the cross-bill it was dismissed. At the same time the order which was theretofore entered quashing the writ of possession was set aside.

There is enough alleged in the bill tending to show that appellants were residents of Texas when they were cited by publication, and appellee well knew they were not nonresidents of the state. The demurrer must be taken as an admission of the truth of the alleged facts. The judgment taken upon such service, when the parties were residents of the state of Texas, at the date of service by publication, and their residence known to appellants at the time, is as though no service had been had, and is void. Scales v. Wren, 103 Tex. 304, 127 S. W. 164; Hume v. Carpenter (Tex. Civ. App.) 188 S. W. 707; Hollywood v. Wellhausen, 28 Tex. Civ. App. 541, 68 S. W. 329.

As this was an action to set aside a default judgment for want of...