Thouvenin v. Rodrigues

• Citation: 24 Tex. 468
• Parties: A. THOUVENIN v. MARIANO RODRIGUES AND OTHERS.
• Decision Date: 01 January 1859
• Court: Supreme Court of Texas

24 Tex. 468

A. THOUVENIN

v.MARIANO RODRIGUES AND OTHERS.

Supreme Court of Texas.

1859.

There must be an acceptance of a donation, to render it complete and effectual to pass the title.

But the possession, by the donee, of the written instrument by which it is made, and a subsequent claim of the land, is sufficient evidence of his acceptance of it.

The court incline to the opinion, without now making a final decision, that by the law governing a donation made in 1833, the father and son were not so far regarded as one and the same person, that the one could not contract with, or receive a donation from, the other.

A judgment, foreign or domestic, which is void for want of jurisdiction, cannot be evidence of any right acquired under it, whether it come in question collaterally, or in a direct proceeding.

The doctrine of international law, as applied to foreign judgments, is, that they must be founded either upon personal service on the defendant, or upon his property.

But a domestic judgment, on constructive service, authorized by law, is valid.

Articles 96 and 98 of decree 277 of the laws of Coahuila and Texas, authorizing constructive service, and the appointment of curators, etc., for absent defendants, was in force until abolished by the repealing statute of the 20th of January, 1840.

If a statute give a new remedy, not repugnant to, or inconsistent with, the old one, the latter is not taken away, but parties have their election between the two. Repeals by implication are not favored.

Remedies which the courts, at the time, recognized as existing, and under which rights of property have been held and transmitted, ought not, by construction, to be held to have been abolished, so as to defeat such rights.

Different principles govern in respect to judgments, when brought in question in a collateral proceeding, and on review in an appellate tribunal; in the latter case they may be erroneous for want of personal service; though not void in the former. 21 Tex. 368.

A judgment against a defendant, in 1839, served by leaving a copy of the writ and petition at his residence, and posting a copy of the writ on the door of the clerk's office, and who was represented by a curator appointed by the court for that purpose, is not, upon its face, void for want of jurisdiction. 1 Tex. 250, 308;9 Tex. 25;13 Tex. 529;18 Tex. 753;21 Tex. 154, 162;28 Tex. 443, 732.

A judgment cannot be impeached in a collateral proceeding, by proof of the death of the plaintiff, before the suit was instituted. 21 Tex. 154;26 Tex. 445;27 Tex. 80.

But such fact is a circumstance that may conduce to the proof of fraud in obtaining the judgment, and is admissible for this purpose, when fraud is alleged. 28 Tex. 732.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This was an action of trespass to try title, brought by Mariano Rodrigues, in his own right, and as guardian of Manuel Yturio Castillo and Vincenta Iturio Castillo, minor heirs of Maria Josefa Rodrigues, and Carlos Sandoval and Fernando Sandoval, against A. Thouvenin, William H. Dangerfield, and John Laplace, for five and one-half leagues of land, which formerly belonged to Jose Maria Rodrigues, the son of Mariano Rodrigues, and the uncle of the other plaintiffs, who, they alleged, died intestate in the year 1850; and that they owned the land, by inheritance, as well as by purchase and donation, from said Jose Maria Rodrigues, during his life-time.

The plaintiffs further alleged, that the defendants pretended to hold and claimed the land by virtue of a sale by the sheriff of Bexar county, under a judgment in favor of John Cortez against Mariano Rodrigues; but they averred that the same was null and void; that no such judgment was ever rendered; and if rendered, it was null and void, the said Mariano Rodrigues never having been cited, as required by law, and the plaintiff therein having been dead many years before the institution of the suit, and there being no legal obligation in existence. And if the said judgment was valid, which they denied, the proceedings under the same were illegal and void; the execution never having been legally issued, and there having been no legal sale or advertisement of the property, and no consideration or price paid; that the whole was a collusion of the said Dangerfield and others to obtain possession of the land. Prayer that the defendants might be compelled to file in court their title-deeds for cancellation; and that the said judgment and sheriff's sale might be declared fraudulent, null and void; and that the legal portion to which they were entitled by inheritance, or by purchase or donation from the said Jose Maria Rodrigues, might be decreed to them; or in case the legal title should be found in one of them, that he might be declared the owner.

On the trial of the cause, the defendants offered to read in evidence to the jury, an instrument of writing (the execution of it being admitted by the plaintiffs), purporting to be a donation of the land in controversy, from Jose Maria Rodrigues to his father, Mariano Rodrigues, dated March 15th, 1833. To the reading of this paper the plaintiffs objected (the grounds of objection were not stated in the bill of exceptions); but the court overruled the objection, and permitted the said instrument to be read, to which the plaintiffs excepted.

The defendants then proved, that previous to the date of the said donation, the plaintiff, Mariano Rodrigues, tried to sell the land in controversy, but did not obtain a sufficient price, and did not sell; that after he received the donation, he made no effort to sell, but claimed the land as his own; and the witness saw the donation afterwards in his trunk, among other papers.

The defendants then offered to read a copy of a judgment, rendered in the district court of Bexar county, at its April term, 1839, in favor of John Cortes against Mariano Rodrigues, for $1,727.62 principal, and $825.92 interest; to the reading of which the plaintiffs objected, the court sustained the objection, and the defendants excepted. The grounds of objection were not stated in the bill of exception, but it appeared from the copy of the record, which was set out, that the said Cortes prayed that Rodrigues might be summoned to answer his said petition, and in case he should not be found in the said county, that a curator should be appointed by the court, to appear and represent him. The sheriff's return was, that he had executed the writ, by leaving a copy of it and the petition, at the residence of the said Mariano Rodrigues, and by posting a copy of the writ on the door of the clerk's office; whereupon, the court appointed an attorney of the court curator ad litem for the said defendant. The plaintiff and curator then appeared, waived a jury, and submitted the cause to the judge, who gave judgment in favor of the plaintiff.

There was a verdict in favor of the plaintiff, Mariano Rodrigues, whereupon the court gave judgment in his favor for the land in controversy; and that the deeds of the defendant, Thouvenin, who alone it appeared made defense, should be cancelled; whereupon Thouvenin gave notice of an appeal.

S. G. Newton, for the appellant.

J. A. & George W. Paschal, and Superville, for the appellees. We lay it down as a well established principle of the civil as well as common law that a judgment, without citation of parties in some of the modes prescribed by law, is a nullity, and all the proceedings had thereon are null and void.

The civil law declares that the citation can in no manner be omitted, because, then, the judgment would be null. Elements Spanish Law, 259; 1 Mart. N. S. 1; McMicken v. Smith and Wife, 5 Id. 482; Abot v. Holmes, 8 Id. 145; Gower v. Hinken, 17 La. 42; Dixon v. Kinnard and Shields, 17 Id. 468; Collins v. Balteson, 3 Id. 245; Story, Confl. L. § 586; McCoy v. Crawford, 9 Tex. 354; McIlhany v. Secrest, Dallam, 538; 3 United States Cond. 319; 9 How. 350;15 Johns. 142;1 Hill, 139, 141;1 Barb. 289;2 B. Mon. 455;11 N. H. 191. The last seven authorities were quoted, and fully sustained the judgment of this court in the case of McCoy v. Crawford. There can be no doubt, with regard to this position, that where the citation upon the party is not in conformity to the law of the forum, the court has no jurisdiction.

Was the citation of Rodrigues in this case such as the law in force at the time required? The proceeding was not in rem, but in person, and against the defendant for a money demand. We think this court has fully settled the question by a series of adjudications, which cannot be got over. We think the point was fully settled by the supreme court, in the cases of Maiden v. Farris, Brown and Calder, as early as 1843. See Dallam, 535. The court in that case decided that service by leaving a copy of the citation and petition at the house of the defendant, on the 26th day of February, 1839, was not sufficient where he did not appear nor answer. The court also said, by reference to the act organizing the jurisdiction and powers of the district court of December, 1836, that personal service of all process was required to be made on the defendant, and that this law was not changed or modified until February 5th, 1840. That the want of service was fatal.

The case of McIlhany v. Secrest is still more full. Dallam, 538. In that case service was effected by publication, by order of the judge. At the close of the petition it was stated that the defendant was a transient person; that his residence was not known; that ordinary citation might not reach him.

The court say, “our statute law nowhere authorizes or legalizes the service of process of any kind, than personal service, with the single exception of attachments,” etc. That the act of 1836, “ confined the service to the person. ” That after the repeal of the law of 1840, authorizing service to be made on a person over fourteen years of age, at the house of the defendant, ““ The law now...