Stuart v. Anderson

• Decision Date: 01 May 1888
• Citation: 8 S.W. 295
• Parties: STUART <I>et al.</I> v. ANDERSON <I>et al.</I>
• Court: Texas Supreme Court

8 S.W. 295

STUART et al. v. ANDERSON et al.

Supreme Court of Texas.

May 1, 1888.

Appeal from district court, Falls county.

Trespass to try title, brought by J. M. Stuart, L. W. Goodrich, and B. B. Clarkson against P. H. and J. M. Anderson, D. C. Homan, and J. A. Jones. D. F. Wisnell intervened as party defendant. Judgment for defendants, and plaintiffs appeal.

Goodrich & Clarkson, for appellants.

STAYTON, C. J.

This is an action of trespass to try title, instituted by appellants. James Humphries is common source of title, and through him the appellants claim by direct conveyances. The appellees claim through a judgment against Humphries, upon the validity of which depends their title. On January 28, 1867, Joseph Harrell brought an action against James Humphries, in the district court for Travis county, on a note for $160. The petition alleged that Humphries was not a resident of this state, but that he had property in the county of Falls, and also an unlocated balance of a land certificate described, which was alleged to be then on file in the general land-office. The petition prayed that attachment issue to Falls county, to be levied on property there situated, and that another issue to Travis county, to be levied on the balance of the unlocated certificate then on file in the general land-office, and for citation by publication. The necessary steps were taken to authorize the writs for publication and attachment to issue, and they were issued. That issued to Travis county has on it the following return: "Received same day issued, (January 29, 1867,) and executed same day by attaching the within-named unlocated balance of land certificate No. 186. GEO. B. ZIMPELMAN, Sheriff." The land in controversy was patented under so much of that certificate as is claimed to have been unlocated at the time the attachment was levied; but there is a controversy whether that part of the certificate had not been applied to the land in controversy at the time the attachment was levied. How the levy was made, is not further shown than appears by the return of the sheriff. The attachment issued to Falls county was levied on other land in part located by virtue of the same land certificate. Writ for citation by publication issued on the day the petition was filed, and the only return indorsed on it is as follows: "Came to hand same day issued, and ordered the foregoing citation to be published in the Southern Intelligencer for four successive weeks prior to return-day hereof. January 28, 1867. G. B. ZIMPELMAN, Sheriff T. C." Accompanying the citation and return, however, was a copy of the citation as published in the paper named in the return, and the printer's receipt, of date January 31, 1867, for $18.75, printer's fee for publication. On April 15, 1869, another petition, styled "An Amended Petition," was filed, in which plaintiff set up a new cause of action based on a note for $400, of which Harrell alleged he was the owner. This petition sought a recovery on the note set up in it, and contained no prayer for citation, nor averment of any fact that would have authorized citation by publication, but it contained a prayer as follows: "Petitioner prays that on the trial of this cause he be given a judgment for the full amount of said note, principal and interest, up to the date of the rendition of said judgment. Petitioner further prays that he be allowed all the means and the benefit of all the writs which is prayed for in said original petition, and that one judgment embrace the amounts due on both notes." On the same day the amended petition was filed a judgment was rendered in favor of Harrell for the entire sum then due on both notes, which directed the attached property to be sold in its satisfaction. The recital in the judgment as to service of citation, and as to the non-appearance of Humphries, was as follows: "Now comes the plaintiff in the above-styled cause, by his attorney, and announced ready for trial, and the defendant, although he was duly called, came not; and it appearing to the satisfaction of the court that the said defendant, James Humphries, has been duly cited by publication in the manner prescribed by law," etc. The judgment further stated that it appeared to the satisfaction of the court that the attachments before referred to had been legally levied upon lands which the judgment described, and upon the unlocated balance of the land certificate, which it described generally, without giving the extent to which it was unlocated, and declared that it was then on file in the general land-office of the state of Texas. The appellees claim under the judgment thus rendered. The court's conclusion of law, from the facts above stated, as to the jurisdiction of the district court for Travis county to render the judgment against Humphries, was: "That all questions as to the jurisdiction of the district court of Travis county, in the case of Harrell v. Humphries, are concluded by the recital of service of citation by publication and levy of said attachment appearing in said judgment, and recited aforesaid; and now it must be and is conclusively presumed that the jurisdiction of said court in said case had attached, and said court had full power and authority to adjudge against said defendant the sum $1,030.55, and costs, and to subject said property, described in said writs of attachment, returns, and judgments, to its payment." The court below found as a fact that there never was any personal service on Humphries, nor any other service of citation or attachment than as appears from the statement above made. Joseph Harrell was a resident of Texas. The title of the appellees, being the elder, must prevail if the judgment through which they claim be not void.

There has been much difference of opinion in courts, for whose decisions we have the highest respect, as to whether the same presumptions will be indulged in favor of jurisdiction where reliance is placed on citation by publication and seizure of property as will be where personal service, made within the territory over which the court has jurisdiction, is relied upon. It seems to us that there can be no substantial reason for holding, in the one case, that it must be affirmatively shown that such process as the law declares sufficient was properly executed, while, in the other, this will be presumed if the record does not show to the contrary. Whether the jurisdiction of a court be general or special cannot be made to depend upon the character of the process through which it acquires power over the person or thing to be affected by its final adjudication. The constitution confers jurisdiction, but the legislature prescribes the process through which persons and things may be brought within its reach, and made subject to its exercise. It seems to us illogical to hold, when the averments of the pleadings show that personal service might have been made within the jurisdiction, that this will be presumed to have been done if the record be silent, or do not show to the contrary, when the court has exercised, or assumed to exercise, the power to make a final judgment, but to hold that the same presumption will not be indulged as to proper citation by publication, or as to the seizure of property, when the pleadings show that these things were necessary to be done, and could have been done, before the court assumed the power to render a final judgment. In either case the presumption that the court did not render a final judgment until it was authorized to do so, arises from the fact that to have done otherwise would have been a breach of duty, which is never presumed from the doing of an act that may have been legal. If "it appears from the inspection of the record of a court of general jurisdiction that the defendant, against whom a personal decree or judgment is rendered, was, at the time of the alleged seizure, without the territorial limits of the court, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree." Galpin v. Page, 18 Wall. 364. If, however, the record shows that the defendant was a resident of the territory of the state within which such a court sits, its process must be served upon him personally, and it ought to be presumed in such a case, nothing appearing in the record to show to the contrary, that personal service was made before the court entered a final decree or judgment. In the case before us, it appears that James Humphries was not a resident of Texas at the time Harrell instituted the original action against him, and it further appears that proper steps were taken to entitle the latter to have citation by publication. The return on the citation, however, does not show that it was executed as the law requires, but the judgment declares that it appeared to the court that he had been cited by publication in the manner prescribed by law. If the district court, after Harrell filed the amendment setting up a new cause of action, had jurisdiction to have rendered a judgment on the cause of action first asserted, or on the cause of action as it stood after the amendment was filed, then the same presumption, that citation by publication was duly made, ought to be indulged in this case that would be indulged in favor of personal service in a case in which the record showed a defective return on citation requiring personal service, but in which the judgment declared that the service was made as required by law. In like event, although the return on the writ of attachment did not show how it was executed, the court having declared that it "was legally and formally levied" on the land certificate described in the judgment, it ought to be held, in any collateral proceeding, that the writ was so executed as to give legal...