Robins v. Sandford

• Decision Date: 29 October 1927
• Docket Number: (No. 11860.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 1 S.W.2d 520
• Parties: ROBINS v. SANDFORD et al.
• Court: Texas Court of Appeals

Page 520

1 S.W.2d 520

ROBINS v. SANDFORD et al.

(No. 11860.)^*

Court of Civil Appeals of Texas. Fort Worth.

October 29, 1927.

Rehearing Denied November 26, 1927.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by J. W. Robins, trustee, against W. G. Sandford and others. From judgment dismissing suit, plaintiff appeals. Affirmed.

John J. Hiner and M. L. Swartzberg, both of Fort Worth, for appellant.

Thompson & Barwise, L. J. Wardlaw, and Lipscomb & Seideman, all of Fort Worth, and Albert B. Hall, of Dallas, for appellees.

CONNER, C. J.

This suit was instituted by J. W. Robins, as trustee of the Owenwood pool No. 3, a trust estate, against W. G. Sandford, the Continental National Bank of Fort Worth, the Marfa State Bank of Marfa, and the Fidelity & Deposit Company of Maryland. J. W. Robins sued for the benefit of his trust association, and his complaint is set forth in a petition containing two counts. In the first count, it is alleged, in substance, that defendant W. G. Sandford, on the 13th day of May, 1926, by an order signed on that day and made in vacation without notice to the plaintiff by Hon. C. R. Sutton, judge of the Eighty-Third judicial district of Texas, was appointed receiver of all the properties of Owenwood pool No. 3 situated in Texas. It was alleged that the order appointing the receiver had been made in a suit purporting to have been theretofore filed by one C. B. Tandy against the plaintiff, Robins, and other as defendants, in the district court of Upton county, Tex., but which in fact had not been instituted until the day after the appointment. A copy of the order was attached as Exhibit A, and made a part of the petition. The order of appointment was as follows:

"In the District Court of Upton County, Texas, Eighty-Third Judicial District.

"C. B. Tandy v. Owen A. Wood et al. No. 83.

"The petition filed herein, and praying, among other things, for the appointment of a receiver, having been presented to me, in chambers, on this, the 13th day of May, 1926, it is ordered, adjudged, and decreed that W. G. Sandford, of Fort Worth, Tarrant county, Tex., be, and he hereby is, appointed receiver of all of the assets and properties described in said petition, and of all other assets and properties belonging to, or standing in the name of, Owenwood pool No. 3, or in the name of J. W. Robins, trustee for Owenwood pool No. 3, or in the name of Owen A. Wood, trustee for Owenwood pool No. 3, and situate in the state of Texas, and of all other properties situate in the state of Texas, and belonging to the said Owenwood pool No. 3, or to the owners of interest or units therein and situate in said state; and, in addition to the powers conferred upon the receiver by statute, said receiver is now and here expressly authorized, empowered, and directed to take immediate possession and control of, and operate and manage all of, said properties. And I hereby fix the bond of the said W. G. Sandford, receiver, at the sum of $100,000, the same to be conditioned as required by law; this appointment to take effect upon the execution and approval of said bond and the filing herein by said receiver of the statutory oath. C. R. Sutton, Judge, District Court, Upton County, Texas, 83d Judicial District."

It was charged that the defendant Sandford, on the day following the date of the order, qualified as such receiver by giving bond and taking the oath required, and thereupon immediately took possession of all of the properties of the association situated in Texas, which included $152,269.39 in cash, but of which amount, by the consent of plaintiff, $10,930.19 was paid out in liquidation of outstanding checks and obligations due from said fund, leaving in the hands of Sandford the sum of $141,618.11; that said Sandford also took possession of certain oil-producing land described in the petition, and was appropriating the proceeds thereof; that of the moneys received he had placed in a special account in the Continental National Bank of Fort Worth, in his name as receiver, $141,618.11; that of the moneys deposited with the Continental National Bank some $50,000 had been withdrawn and deposited with the Marfa State Bank of Marfa, Tex.; that said banks were to pay 3 per cent. interest on such deposits. Plaintiff therefore prayed to recover all sums of money that had been so deposited, with the 3 per cent. interest thereon, and all lands and properties that had been taken into the possession of Sandford, praying for judgment against the said Sandford and his surety on his receiver's bond, to wit, the Fidelity & Deposit Company of Maryland.

In the plaintiff's second count it was alleged, in substance, that, among other surveys of land taken into the possession of Sandford as receiver, was one of 160 acres located in Upton county, then under lease by the association for the purpose of developing the oil therein contained; that the lease at the time it was taken into Sandford's possession was of the reasonable cash value of $80,000, and that Sandford, by a negligent failure to pay the rentals due by the terms of the lease, had permitted the lease to lapse, and thereby become wholly lost to the association, and he prayed for judgment against Sandford and his surety, the Fidelity & Deposit Company of Maryland, in the sum of $80,000, with 6 per cent. interest from the date of the loss of the lease.

The defendants appeared and presented general and special demurrers to the petition, which the court sustained, and, plaintiff having declined to amend, judgment was rendered for the defendants, dismissing the suit, from which judgment the plaintiff has appealed.

In the court below the plaintiff admitted in open court that the first count of his petition was predicated upon his allegations to the effect that, at the time of the court's order appointing Sandford receiver on the 13th day of May, 1916, no suit in fact was pending in the district court of Upton county, it being charged that the application and petition for the receiver had not in fact been filed with the clerk of the district court of Upton county until the next day, to wit, the 14th day of May, 1926. By proper pleas the defendants urged that this constituted a collateral attack upon the order of court appointing the receiver, and that therefore plaintiff's suit should be abated, and plaintiff be required to seek relief, if he so desired, in the district court of Upton county, where the receivership was pending, and the court's ruling sustained this view. We think the court ruled properly on the question. Under our statute (article 2293, Rev. Statutes of 1925), the authority of a judge of a court having jurisdiction of the subject-matter to appoint a receiver in a proper case and in a pending suit cannot be, and is not, questioned. Appellant's contention is that in the present instance there was no suit pending in Upton county at the time of the appointment under consideration, and that therefore the order of appointment is a nullity, and hence that the proceedings may be attacked collaterally. That the attack in the present suit is a collateral one cannot be questioned. That the judgment of a domestic court upon a matter within its jurisdiction cannot be attacked collaterally, unless the record itself by its recitations shows the judgment to be void, seems so well established that no citation of authority is necessary. We will, however, quote from a few cases to illustrate the doctrine. In the case of Levy v. Roper, 113 Tex. 356, 256 S. W. 251, it is said:

"The necessity for maintaining rights acquired on the faith of apparently valid judgments of domestic courts of general jurisdiction has led to the rule, now firmly established in Texas, that whenever such judgments are collaterally assailed their jurisdictional recitals are not open to attack but import absolute verity."

Judge Denman, of our Supreme Court, in the case of Crawford v. McDonald, 88 Tex. 632, 33 S. W. 328, said:

"Where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold, he will not, in a contest over the title to the property, be allowed to show by evidence dehors the record that the judgment was rendered without any service whatever upon him. Logically the judgment is in fact void, but on grounds of public policy the courts, in order to protect the property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose of showing the invalidity of the judgment; and therefore for all practical purposes, in such collateral attack, the judgment is held valid."

In the case of Cleveland v. Ward, 285 S. W. 1063, Chief Justice Cureton, speaking for the Supreme Court on judgments void for want of service, said:

"Such judgments against the parties not served are void, and yet, because of recitals in the judgments, they cannot be collaterally attacked. Levy v. Roper, 113 Tex. 356, 361, 256 S. W. 251."

In the case of Martin v. Burns, 80 Tex. 676, 16 S. W. 1072, it is said:

"Where the case is within the jurisdiction of the court and no fact appears affirmatively in the record sufficient to defeat the jurisdiction, evidence aliunde, even where the judgment is silent as to the process or its service, will not be heard to contradict the presumption of regularity or to establish a fact outside of the records for the purpose of showing that jurisdiction over the former did not in fact attach and thus impeach the judgment, if the judgment itself finds and recites a valid notice or citation and service that controls the balance of the record, otherwise if it recites an invalid citation, or names the precise character thereof. If the judgment is silent, then the whole process in the record may be examined. This is as far as the courts can go when the proceeding is collateral. These rules of decision are too well established in this...