Valdez v. Cohen

• Decision Date: 21 March 1900
• Citation: 56 S.W. 375
• Parties: VALDEZ v. COHEN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W. 375

VALDEZ v. COHEN.¹

Court of Civil Appeals of Texas.

March 21, 1900.

Appeal from district court, Webb county; A. L. McLane, Judge.

Suit by H. F. Valdez against Ike Cohen. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. Winslow and C. A. McLane, for appellant. Thos. W. Dodd and J. F. Mullaly, for appellee.

FLY, J.

This is a suit instituted by appellee to recover of appellant certain land in the city of Laredo known as "Lot No. 7 in block 63." The cause was tried by the court, and judgment rendered for appellee. There is no statement of facts, but it appears from the findings of fact of the trial judge that appellee, in May, 1889, was indebted to appellant in the sum of $26.14 for taxes on lot No. 6 in the same block as the land sued for, which lot No. 6 had been conveyed by appellee to appellant by warranty deed. On May 11, 1899, appellant instituted suit against appellee in the justice's court of precinct No. 3 in Webb county. Appellee at that time was a resident of Harris county, and a citation was issued to that county, which was duly served upon appellee on May 17, 1899. Appellee failed to appear at the term to which he had been cited, and judgment by default was rendered against him, and the lot in controversy was sold under execution to satisfy the judgment so rendered, and was purchased by appellant for $65, the full market value of the lot being $150. A few hours after the sale, Cohen tendered to Valdez the amount of the judgment and costs, which he refused. The number of the case on the docket was 39, and there is at the top of the citation, isolated from the style of the case, the number "36," which it may be presumed is intended to represent the number of the case. Appellee sought in his petition to set aside the sale made under execution on the ground that the judgment was void because the justice's court had no jurisdiction over a party not living in the county in which the suit was instituted, and because the number of the cause as given in the citation was 36, while that on the docket was 39. It was also sought to set aside the sale because of inadequacy of price, and because appellee had, a short time after the sale, made a tender to appellant of the amount of the judgment and costs. It was held by the court that: "Cohen was not bound to appear and plead his privilege to be sued in the county of his residence. The citation showing on its face that he was a resident of Harris county, the justice's court of Webb county did not acquire jurisdiction by reason of his failure to answer; and, there existing no other fact to give the court jurisdiction, I am of the opinion that the judgment of the justice's court is void, and that defendant has no title to the lot in controversy by virtue of the sheriff's deed thereto, and that plaintiff is entitled to recover." The ruling of the court quoted is in conflict with the decisions of the supreme court in several instances. Morris v. Runnells, 12 Tex. 177; Railroad Co. v. Le Gierse, 51 Tex. 201; Masterson v. Ashcom, 54 Tex. 324; State v. Snyder, 66 Tex. 687, 18 S. W. 106. The supreme court said in Masterson v. Ashcom, above cited: "There is a marked distinction between the question of mere personal privilege to be sued in the precinct or county of residence, and which privilege may be expressly or impliedly waived, and that of jurisdiction proper, which cannot be conferred, even by express consent. The justice's court had jurisdiction over the subject-matter, and, if Ashcom was served with process, this would have given the court jurisdiction over the person also, even though the suit had been irregularly brought in a precinct or county other than that of his residence, if he failed to appear and plead in abatement his privilege to be sued elsewhere." There can be no doubt that, if appellee had appeared in the justice's court, and had not pleaded his privilege to be sued in the county of his residence, the justice of the peace could have rendered a valid judgment against him; and it follows that a failure to appear was a failure to claim his privilege, and was a virtual waiver of the same, and a judgment by default against him was not void.

It was held by the court that the variance between the number in the citation and that on the docket was immaterial, and did not render the judgment void. This, by a cross assignment, is presented as error by appellee, and the case of Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060, is cited as authority. In that case it is held that a citation issued from the district court, which does not state the file number of the suit, will not support a judgment by default; but we do not think that the decision can be applied to a citation issued from the justice's court. In article 1178, Rev. St., it is provided that, "when a petition is filed with the clerk, it shall be his duty to indorse thereon the day on which it was filed, and the number of the suit," etc. In article 1179 it is made the duty of the clerk to enter in a file docket the number of the suit, the names of the attorneys, etc. It is required in article 1214 that a citation from the district or county court shall contain,...