Smith v. Walker

• Decision Date: 02 July 1942
• Docket Number: No. 2450.,2450.
• Citation: 163 S.W.2d 857
• Parties: SMITH et ux. v. WALKER et al.
• Court: Texas Court of Appeals

163 S.W.2d 857

SMITH et ux. v. WALKER et al.

No. 2450.

Court of Civil Appeals of Texas. Waco.

July 2, 1942.

Rehearing Denied July 23, 1942.

Appeal from District Court, Leon County; Lex Smith, Judge.

Suit by T. A. Smith and wife against George W. Walker and others seeking to have a royalty contract declared void and to restrain defendants from recording same, basing right to recovery on a prior judgment entered in another cause in favor of plaintiff and against defendant. From a judgment denying plaintiffs the relief sought on the ground that the former judgment was void, plaintiffs appeal.

Reversed and remanded.

W. W. Mason, of Mexia, W. D. Lacey, of Centerville, and Bennett & Bennett, of Normangee, for appellants.

L. W. Shepperd and Bradley & Bradley, all of Groesbeck, and Seale & Seale, of Centerville, for appellees.

RICE, Chief Justice.

T. A. Smith and wife brought this suit in the 12th Judicial District Court of Leon County, Texas, against George W. Walker, seeking to have declared void, and to restrain defendant from recording, a royalty contract in the deed records of Leon County. Plaintiffs pleaded and relied on as a basis for the relief sought, a judgment theretofore rendered in said court in Cause No. 5862, in their favor and against defendant and others. After the filing of the petition, a temporary writ of injunction was issued by the judge of the 12th Judicial District Court of Leon County, and this cause was then transferred to the 87th Judicial District Court of said county. Thereupon the defendant filed his answer in said last-mentioned court, attacking the validity of the judgment theretofore rendered against him and in favor of plaintiffs in Cause No. 5862 in the 12th Judicial District Court of said county.

Plaintiffs presented their plea in abatement, praying that said answer be stricken because the same constituted a collateral attack in the 87th Judicial District Court on a judgment theretofore rendered in the 12th Judicial District Court. This plea was overruled, and the cause was tried to the court without a jury. Over plaintiffs' objections, the trial court permitted the defendant to introduce in evidence a citation issued out of the 12th Judicial District Court, in Cause No. 5862, and its return, showing service thereof by publication on the defendant George W. Walker, together with plaintiffs' pleadings and other filed papers in said cause. On the conclusion of the evidence the court entered judgment denying plaintiffs the relief prayed for, and dissolving the temporary injunction theretofore issued. From this judgment plaintiffs have perfected this appeal.

The trial court filed his findings of fact and conclusions of law, the effect of which was that said judgment rendered in Cause No. 5862 in favor of plaintiffs and against defendant, in the 12th Judicial District Court of Leon County, was void.

In reaching this conclusion the trial court expressly found that the attack made by defendant on said judgment rendered in Cause No. 5862 was a collateral attack; but the court concluded that because said judgment recited "and the defendants having been duly cited by publication, the court appointed W. D. Lacey, a regular practicing attorney of Centerville, Texas, to represent the defendants", it thus set out the precise character of process and precise manner of service of process, thereby making admissible the rest of the record in Cause No. 5862, and particularly the citation purportedly published and served in said cause for the purpose of determining the validity or invalidity of such judgment; or, in other words, in support of or to destroy said judgment. From the above-mentioned evidence the trial court came to the conclusion, and so found, that the citation by publication admitted in evidence was the only citation issued and published in said cause, and that the same, for various reasons, was insufficient to support or authorize the rendition of any part of the decree in Cause No. 5862.

It is the contention of appellants that the judgment rendered in Cause No. 5862 was regular on its face, and, on a collateral attack, imports absolute verity. The appelpellee, while admitting the rule of law to be as contended by appellants, takes the position that such rule is inapplicable here because the judgment attacked recited that "the defendants having been duly cited by publication", thereby setting out the precise mode and manner of service, thereby bringing this case within an exception to the general rule; such exception being that where the judgment expressly recites the evidence on which the trial court bases his finding as to service, the original citation and return thereof may be looked to for the purpose of determining whether or not service was in fact legally had. The contentions of appellee, with whom the trial court agreed, are based upon the following authorities: Fowler v. Simpson, 79 Tex. 611, 15 S.W. 682, 23 Am.St.Rep. 370; Lutcher v. Allen, 43 Tex.Civ.App. 102, 95 S. W. 572, writ denied; Scruggs v. Gribble, Tex.Civ.App., 41 S.W.2d 643; Moorhead v. Transportation Bank, Tex.Civ.App., 62 S.W.2d 184, 186; 25 T.J., sec. 325, p. 844, sec....