Robinson v. Zeigler

• Decision Date: 01 January 1877
• Court: Texas Supreme Court
• Parties: J. A. ROBINSON ET AL. v. SCHMIDT & ZEIGLER.

48 Tex. 13

J. A. ROBINSON ET AL.

v.SCHMIDT & ZEIGLER.

Supreme Court of Texas.

1877.

ERROR from Anderson county. Tried below before the Hon. M. H. Bonner.

Schmidt & Zeigler, on the 5th of July, 1873, filed in the District Court of Anderson county a complaint, denominated by their attorneys a motion, against Julius W. Robinson, sheriff of Smith county, and against Ed. Sharp and five others, his sureties on his official bond. Schmidt & Zeigler charged, that on December 6, 1872, they obtained judgment in the District Court of Anderson county against Sonbens and Stevens for fourteen hundred and sixty-one 54/100 dollars; that on February 5, 1873, they caused to be issued an alias execution, directed to the sheriff of Smith county, which was mailed to him, with instructions to levy at once on property specified; that the process and instructions were received, but that the sheriff, instead of levying, required an indemnifying bond; that, through the willful neglect of Robinson, the execution was not levied upon certain merchandise from which the debt could have been made; that the return of the sheriff, excusing his action, was false; that they had a judgment lien, through the registry of their judgment, on a house of Sonbens and Stevens, situate in Smith county, on which no levy was made, though Robinson had been instructed to levy, whereby Schmidt & Zeigler had been damaged two thousand dollars, the house having been since destroyed by fire. The plaintiff in this motion prayed for service of “this motion” on Robinson and his sureties, and for final judgment for the amount of the judgment recovered against Sonbens and Stevens, with damages, &c.

The service of the motion was made on Robinson and his co-defendants by one “H. S. Spain, city marshal of Tyler, Smith county, Texas.” On the 8th of August, 1873, Robinson appeared, and, as he states, “for no other purpose than to except to the service of the citation in this cause,” and moved to quash the service, because made by one not authorized to execute process. On the same day, Robinson filed what he termed a demurrer to the jurisdiction, setting up that the defendants in the motion were resident citizens of Smith county, Texas, and that they could not be proceeded against as proposed in Anderson county. On the same day, Robinson filed a formal plea to the jurisdiction, based on the question of his residence, and that of his sureties. On the 31st of March, 1874, exceptions were filed to the plea to the jurisdiction. In April, 1874, the court overruled exceptions filed to the service, “because it appeared, from the record, that on the same day the defendant made formal appearance by demurrer and plea in abatement, and it does not appear which was first filed, or but that proper service had been waived by the defendant.” A demurrer by plaintiff in the motion to the plea in abatement filed by Robinson was sustained, to which defendant excepted. After one mistrial, a verdict and judgment was rendered for plaintiff in motion, for $1,958, with interest, against Robinson and his sureties, from which they prosecuted this writ of error.

G. W. & H. Chilton, for plaintiff in error.--The utmost presumption which could be indulged against the defendant, is that the pleas and motions were filed cotemporaneously; and we think it authoritatively settled, that the defendant had the right to do this, without waiving any right or motion which he might otherwise have urged. We quote the opinion of Justice Gould, which, we think, states the rule of law and established practice governing the question: (see Hagood v. Dial, 43 Tex., 627:) “Whilst the privilege of being sued only in the county of his residence, which our statute, with specified exceptions, gives a defendant, is waived if not asserted before answering to the merits, we think it is not waived where (as in this case, it is fair to conclude) the plea asserting it was filed cotemporaneously with other defenses. It was held very early by this court, that the common-law rules of pleading were inapplicable under our system to this plea. (Richardson v. Pruitt, 3 Tex., 228.) It is evident that the defendant did not intend, by his exceptions and pleas to the merits, to waive his privilege which he had already asserted.”

We think the same rule should apply to this case. The defendant certainly could not have intended to have waived a defect so obvious and radical as that of the service in this case. The appellee, in his brief, does not cite any authorities in support of the action of the court on this reason, and we apprehend that none can be found.

On the question involving the sufficiency of the service of process by the marshal, they cited McClane v. Rogers, 42 Tex., 218.Greenwood & Gooch, for defendants in error.--The appellants have assigned the following errors:

I. “That the court erred in overruling the defendant's plea and motion to quash the return on the citations in this case, and demurrer to the jurisdiction.”

To this we say:

1st. The “motion to quash the service,” “demurrer to the jurisdiction,” and ““plea to the jurisdiction,” were all filed on the 8th day of August, A. D. 1873, and it does not appear from them that they were filed in due order of pleading; and if not, and perhaps if they were, the “demurrer,” or “plea,” was a voluntary appearance; and unless the motion to quash service was first filed and acted upon before filing the plea, it would have been error to sustain it, even if it had merits in it. After the pleas were filed, they were before the court properly, if not properly served.

2d. The motion to quash service was filed by J. A. Robinson for himself and other defendants, but not as an attorney; and we are not aware that his co-defendants could have filed a motion otherwise than by themselves or attorneys. Therefore, as to such defendants as were not parties to the motion, (and none were except Robinson,) it was not error to overrule it, if error as to Robinson.

3d. J. A. Robinson, Ed. Sharp, M. Wood, J. C. Shields, and D. B. Luckey (Shields and Luckey do not now complain) were served with citations and copies of the petition, by H. L. Spain, city marshal of Tyler, Smith county, Texas, the said defendants, as the return shows, being residents of Tyler It is contended, in the motion, that they were not served by a proper officer.

In case of Burns v. Jones, 37 Tex., 50, we find this identical question adjudicated. Jones et al. sued Burns et al., and the citation was served, by the town constable of La Grange, on Burns and wife. They, Burns and wife, moved to quash the return, on the ground that he was not the “constable of the county.” The overruling of the motion was reserved, and assigned as error. The court say: “Service by any constable residing within the limits of the county, though he be elected or appointed to serve within a city, town, or village, is a sufficient compliance with the statute.”

II. “That the court erred in overruling the defendant's plea in abatement, filed in this case.”

To this we say: We suppose this assignment refers to the plea of J. A. Robinson to the jurisdiction of the court.

1st. The plea to the jurisdiction of the person is a privilege, plea, and can only be plead by each defendant for himself, and not by one defendant for all others, he not answering as attorney for them.

Then this plea did not present the question of privilege except as to J. A. Robinson. If it was error to disregard the plea, such error only extended to the case so far as related to him.

MOORE, ASSOCIATE JUSTICE.

We have been cited to no statute authorizing the service of process from the District Court by a town or city marshal because the sheriff may be a party to, or interested in, the suit or proceeding in which such process is issued. If the sheriff is disqualified from executing process, the duty otherwise incumbent upon him, when the...