Sublett v. Black

• Decision Date: 27 May 1981
• Docket Number: No. A2512,A2512
• Citation: 617 S.W.2d 754
• Parties: Adelaide W. SUBLETT, Appellant, v. Katherine S. BLACK, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 754

617 S.W.2d 754

Adelaide W. SUBLETT, Appellant, v. Katherine S. BLACK, Appellee.

No. A2512.

Court of Civil Appeals of Texas, Houston (14th Dist.).

May 27, 1981.

Rehearing Denied July 1, 1981.

Larry Dowling, Dowling & Wilson, Austin, for appellant.

William A. Tillman, Tillman, Pribilski & Hunt, Houston, for appellee.

Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.

J. CURTISS BROWN, Chief Justice.

This is an appeal from an equitable bill of review dismissed by the probate court upon granting respondent's plea in bar.

On September 2, 1977, Katherine S. Black (Katherine), respondent below, filed an application for guardianship requesting her mother be declared mentally incompetent and Katherine be appointed guardian of the person and estate of her mother, Adelaide W. Sublett (Adelaide), petitioner below. Adelaide received personal service of citation on September 13, 1977. The citation was filed on September 26, 1977. It directed Adelaide to appear before the probate court "on or before 10 o'clock a. m., of the next Monday after the expiration of 10 days after the date of service hereof...." Citation was also posted from September 6, 1977 to September 19, 1977, which citation was filed on September 15, 1977. A hearing was held on September 20, 1977, as scheduled in the posted citation. Adelaide did not appear at the hearing. The probate court adjudged her non compos mentis and appointed Katherine guardian of Adelaide and her estate. The court's order recited "that due notice of the said application has been given as required by law ..." and "that this court has venue and jurisdiction of the proceedings and subject matter and of all persons...." On December 15, 1977, Katherine filed an application to sell Adelaide's real estate located at 7815 Richmond, to pay guardianship expenses and debts. On January 5, 1977, the probate court ordered the lot sold for $54,250.00 in cash.

Adelaide filed a petition for bill of review in the probate court on August 21, 1979, alleging the order was "wholly void," because Adelaide had not been properly served and notified, and requesting the judgment be set aside. Katherine filed a plea in bar contending that, because Adelaide had failed to join all necessary parties, her bill of review was a collateral attack in which the recitals of due notice in the court's order were conclusive.

The probate court sustained Katherine's plea in bar and dismissed Adelaide's petition. Adelaide filed motions for new trial and for leave to amend her pleadings and join new parties. The following day, the court filed its findings of fact and conclusions of law. It found citation was posted. It concluded Adelaide's bill of review collaterally attacked the guardianship order, and, in such an attack, the jurisdictional recitals of the order foreclosed inquiry into the sufficiency of notice.

Adelaide cites as error (1) the court's refusal to declare the guardianship order void because personal service was required and judgment was entered before the appearance day had arrived and/or because the posted citation had not been on file the required length of time; (2) the court's holding that Adelaide's bill of review was a collateral attack; and (3) the court's denial of the motion to amend and join additional parties.

In response to Adelaide's allegation of non-compliance with pertinent notice rules, Katherine contends that, while a bill of review is ordinarily a direct attack, it becomes a collateral attack when its purpose is to void a judgment or order of the court and all parties who may in any way be affected by the outcome of the suit are not joined. She further contends that in a collateral attack plain jurisdictional recitals on the face of the judgment must be accorded absolute verity, thereby precluding the due notice issue. She relies on Pure Oil Company v. Reece, 124 Tex. 476, 78 S.W.2d 932, 934 (1935); Wright v. Matthews, 130 S.W.2d 413 (Tex.Civ.App. San Antonio 1939, writ dism'd, judgmt corr.); Cheney v. Norton, 168 S.W.2d 697, 698 (Tex.Civ.App. Dallas 1943, no writ); and Fitzgerald v. Bonham, 247 S.W.2d 265, 267 (Tex.Civ.App. Galveston 1952, writ ref'd n. r. e.). The rule in these cases is grounded in the public policy of protecting property rights. It developed in order to properly accommodate two competing rules. The first voids a judgment entered by a court without jurisdiction over the person of the defendant or the subject matter of the litigation at the time of rendition. The second precludes inquiry, by evidence outside the record in a collateral attack upon a judgment which is regular on its face and rendered by a court of general jurisdiction, into any fact upon which the court rendering such judgment must have passed in proceeding to its rendition. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895).

We adhere to the principles announced in these cases, cited by Katherine. However, we draw a distinction between review of the status of a person declared incompetent and review of the validity of conveyances or other acts...