Rowland v. Klepper

• Decision Date: 02 March 1921
• Docket Number: (No. 126-3010.)
• Citation: 227 S.W. 1096
• Parties: ROWLAND v. KLEPPER et ux.
• Court: Texas Supreme Court

Page 1096

227 S.W. 1096

ROWLAND v. KLEPPER et ux.

(No. 126-3010.)

Commission of Appeals of Texas, Section A.

March 2, 1921.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by D. L. Klepper and wife against Charles P. Rowland. A decree for plaintiffs was reformed and affirmed by the Court of Civil Appeals (189 S. W. 1033), and defendant brings error. Reformed and affirmed.

J. L. Goggans, Ed T. Harrison, and D. A. Eldridge, all of Dallas, for plaintiff in error.

Gano & Gano, Muse & Muse, and W. T. Strange, all of Dallas, for defendants in error.

A. B. Flanary, of Dallas, for Branderburg, Sheriff.

TAYLOR, J.

This was a suit by D. L. Klepper and wife, Fannie J. Klepper, defendants in error, to set aside a default judgment rendered in a tax suit by the state against D. L. Klepper, foreclosing a lien for taxes on their house and lot. Defendants in error denominated their suit a "proceeding by way of motion and a suit to review," and sought, in addition to setting aside the judgment, to set aside the sheriff's deed conveying the property to C. P. Rowland, plaintiff in error, and to recover title to the property.

The amended petition alleged that D. L. Klepper had never been served with citation in the tax suit; that a one-half undivided interest in the property was owned by Fannie J. Klepper, and that she was not made a party to the suit; that the property was the homestead of defendants in error; that the tax for the year 1908 on the entire property had been charged against D. L. Klepper's one-half interest. It was further alleged that plaintiff in error had declined to receive any sum from them in satisfaction of the bid made by him in purchasing the property. The petition recited a tender and offer on the part of defendants to pay any sum the court might deem proper to redeem the land; also an offer to pay whatever sum the court might determine was due on the property for taxes for the year 1908, including penalties. Numerous irregularities were alleged as to the making of the sale, and it was specifically alleged that the sale was made for a grossly inadequate price—$40 for property worth $3,000.

Plaintiff in error disclaimed as to the one-half interest of Fannie J. Klepper, and set up as his main defenses, that the suit was a collateral attack upon the judgment in the tax suit; that, if a direct attack, it could not be maintained without making the state a party defendant (which was not done); that parol evidence was inadmissible to contradict the recitals of service contained in the tax suit judgment; that plaintiff in error had no knowledge of any irregularities in obtaining the judgment, and was therefore an innocent purchaser.

The jury found, among other things, in response to special issues, that the deputy sheriff did not deliver to D. L. Klepper in person a copy of the citation in the tax suit, and that Klepper did not learn of the sale of the property by the sheriff until May 16, 1914. There was evidence to sustain these findings.

The judgment in the tax suit was rendered on November 23, 1910, and this suit was filed May 16, 1914.

Judgment in the present suit was rendered in favor of defendants in error setting aside the judgment in the tax suit and all proceedings thereunder, and for recovery of the property. The Court of Civil Appeals reformed the decree of the trial court by giving judgment...