Stegall v. Huff

• Decision Date: 07 January 1881
• Docket Number: Case No. 1043.
• Parties: H. L. STEGALL ET AL. v. DAVID HUFF.
• Court: Texas Supreme Court

54 Tex. 193

H. L. STEGALL ET AL.

v.DAVID HUFF.

Case No. 1043.

Supreme Court of Texas.

Jan. 7, 1881.

APPEAL from Angelina. Tried below before the Hon. W. D. Wood.

Suit by appellee against the appellants, for a tract of 493 acres of land situated in Angelina county, which had been sold by the sheriff of that county on the 7th day of September, 1869, to H. L. Stegall, C. H. Ballard and E. L. Robb, by virtue of an execution and venditioni exponas, issued on a judgment rendered by Arnold Branton, an acting justice of the peace, in favor of J. R. Stark, and against Huff, the appellee, on the 29th day of May, 1869; service was by publication, based upon Stark's affidavit for same. Jury waived, and judgment for Huff, appellee, decreeing the judgment rendered by the justice of the peace void.

On the 5th of March, 1869, J. R. Stark made affidavit before A. Branton, justice of the peace of Angelina county, “that David Huff was indebted to him $94, and that the residence of said Huff was unknown to affiant.”

Upon this affidavit as a basis, the justice ordered citation by publication. That citation was returned with the following indorsement: “Came to hand March 6, 1869, and forwarded same day to the editor of the within mentioned newspaper for publication, as the law requires.

+--------------------------+
                ¦(Signed)¦ALBERT MANTOOTH, ¦
                +--------------------------+
                

Deputy Sheriff of Angelina County.”

On the 12th of April, 1869, there was filed with the justice, an affidavit of the publisher of the Redland Beacon, with a printed copy of the citation attached, which affidavit was indorsed as follows: “Came to hand ____ day of March, 1869, and executed by having the within citation published in the Redland Beacon for three successive weeks previous to the date, this 12th day of April, 1869.

+-----------------------+
                ¦(Signed)¦T. R. WALKER, ¦
                +-----------------------+
                

Sheriff of Angelina County.”

Upon this affidavit, citation and return, the justice, on the 29th day of May, 1869, rendered judgment by default against Huff in favor of Stark, for $94 and cost of suit.

On the 7th of September, 1869, the sheriff of Angelina county, by virtue of a venditioni exponas issued on that judgment, sold the land in controversy as the property of Huff to appellants Stegall and Robb, and one C. H. Ballard, who subsequently purchased Stegall's interest at a marshal's sale, and afterwards, by deed of gift, conveyed his interest in the land to his daughter, Amanda Stegall, wife of Henry L. Stegall.

The justice court law of 1869 (Pasch. Dig., art. 1190) authorized citation by publication upon two grounds only: first, upon affidavit that the defendant was absent from the state; second, upon affidavit that the defendant was a transient person, so that the ordinary process of law cannot be served upon him.

H. G. Lane and Guinn & Gregg, for appellants.

I. On the subject of service by publication, we refer to Paschal's Digest, 2d ed., art. 1190; and on the subject of sheriff's sales and purchasers under execution, we refer, respectfully, to Sydnor et al. v. Roberts et al., 13 Tex., 598; also Ayres v. Duprey, 27 Tex., 593;Howard and Wife v. North, 5 Tex., 290;Stroud v. Casey, 25 Tex., 740;Cundiff v. Teague, 46 Tex., 475.

II. We submit to the court that the title deed of the plaintiffs in error from the sheriff could not be attacked in this collateral proceeding on account of any irregularity of the service by publication from the justice court or any such irregularities in the execution levied by the sheriff. The purchaser at execution sale is only bound to take notice of the judgment and execution under which the property is sold. Brooks v. Rooney, 11 Ga., 423; Sullivan v. Herndon, 11 Ga., 294; Cooper v. Horter, 1 Carlton, 427; Clark v. Watson, 2 Carlt., 399; Trotter v. Nelson, 1 Swan, 7;Winston v. Otly, 25 Miss., 451;Jackson v. Robins, 16 Johns., 537; Thompson v. Phillips, 1 Bald. C. C., 246; P. J. Willis & Bro. v. Green Ferguson, 46 Tex., 497; W. A. Taylor v. D. E. Snow, 47 Tex., 462;Mills v. Alexander, 21 Tex., 154; Bohanan v. Haus, 27 Tex., 445; Lawlor's Heirs v. White et al., 27 Tex., 250;Giddings v. Steele, 28 Tex., 732;Wyche v. Clapp, 43 Tex., 543;Hancock v. Metze, 15 Tex., 209;Coffee v. Silvan, 15 Tex., 354.

Wheeler, Borden & Wheeler, for appellee.

The court erred in allowing appellee to introduce in evidence a copy of the deeds of appellant to prove a common source, when there was no allegation in his petition alleging a common source, or that the said deeds were forged. 1 Greenl. on Ev., p. 66, secs. 50, 51, 52 et seq.

BONNER, ASSOCIATE JUSTICE.

The affidavit for citation by publication in the justice court, in the case of Stark v. Huff, was based upon the ground that the residence of the defendant was unknown.

Under the law then in force, citation by publication was authorized in justice courts only upon affidavit that the defendant was absent from the state, or that he was a transient person. Pasch. Dig., art. 1190. Compare District Court Act, art. 25.

It is a well established general rule, that if it affirmatively appears from the record, either that the court did not have jurisdiction of the subject-matter or of the person by some mode of procedure authorized by law, where this is required, as by our statute governing proceedings in justice courts, then the judgment will be held void, even upon a collateral attack. Freeman on Judgments, ch. 8.

In this case the record of the justice court affirmatively shows that the judgment by default against Huff was rendered upon citation by publication, issued upon a ground not authorized by the statute, and was consequently void, and not voidable only.

Such citation being but a substitute for personal service and ex parte in its character, should be strictly construed....