Ward v. Another

• Decision Date: 01 January 1854
• Citation: 11 Tex. 287
• Parties: WARD v. LATHROP AND ANOTHER.
• Court: Texas Supreme Court

11 Tex. 287

WARD

v.LATHROP AND ANOTHER.

Supreme Court of Texas.

1854.

By remanding the cause, when formerly before the Court, it was, in effect, determined that the plaintiff might so amend his petition, as to bring his case within the jurisdiction of the Court; and the cause was remanded for no other purpose than to afford him that opportunity.

Although the plaintiff and defendant both reside within the limits of this State, our Courts have jurisdiction of the action, where the defendant has property or rights and credits within this State, and the plaintiff seeks to subject them to the payment of his demand, or claims some right respecting such property, or rights and credits. (Note 48.)

Amendments which cure a defect of jurisdiction in the Court, like all other amendments, must be taken notice of by the defendant without the renewal of process. (Note 49.)

Error from Matagorda. Suit on promissory notes, by the defendants in error against the plaintiff in error. It appeared by the original petition, that both parties were non-residents of the State; and it did not appear that the defendant had any property in the State. The suit was brought to the Fall Term, 1838; and the citation was returned not found. On the 7th of April, 1849, the following agreement was filed: “In the above cause, it is agreed, by the attorneys of the parties, that publication in order to cite the defendant, shall not be made, to avoid expense; and the defendant by his attorney, hereby waives the said publication, and accepts service of process in this case, waiving copy of petition, and appears to the said case; the said appearance to have the same effect, as if due and legal service by publication had been regularly made, to the April Term, 1849, of this Court. This agreement is now drawn up in pursuance of an understanding had at the last Term of the District Court of this county, between said counsel; Trobridge Ward, agent of Samuel Ward, being present and consenting to the same. Matagorda, February 14th, 1849. (Signed.) Jas. Denison, attorney for defendant; Jones, Butler and Ballinger, attorneys for plaintiffs.” Defendant answered by general demurrer, and a general denial. Demurrer overruled, and verdict and judgment for the plaintiffs. Motion for new trial overruled. Writ of error, and the judgment reversed and cause remanded. (See 4 Tex. R., 180.) Supplemental petition, alleging “that the said Samuel Ward had no property within the knowledge of your petitioners, elsewhere than within the State of Texas, from or out of which your petitioners could collect the moneys due them by said Ward, as set forth in the original petition to which this is a supplement.” They further allege “that the said Ward is the true and legal owner of property within the State of Texas, and of claims and sums of money within said State; that he is and has long been endeavoring to secrete the same, so that the claim of your petitioners may be defeated,” etc. Prayer for an attachment against the property of the defendant, and “that the said Ward may be cited as the law directs, to answer this supplemental petition, and that he be adjudged,” etc. Affidavit and bond. Writ of attachment returned levied, etc. October 9th, 1850, “Order of publication for the absent defendant and the cause continued.” March 16th, 1852, “this day came the parties by their attorneys and announced themselves ready for trial, and thereupon,” etc. Verdict and judgment for the plaintiffs. Writ of error. The following agreement” was attached to the transcript of the record. (Stile of the case and number in the Supreme Court.)

“It is hereby agreed and stipulated by the parties, that when this case was called for trial, at the Spring Term, 1852, of the District Court of Matagorda, the said Ward was not personally present in Court; that said Ward was not represented by himself or any attorney, in conducting the trial; and that so much of the judgment of the Court below as recites that said Ward announced himself ready for trial at said Term of said Court, is a clerical error; and it is further agreed that the Supreme Court shall, in adjudicating this case, have reference to the facts above stated, as though the same appeared in the record. (Signed.) Jno. B. Jones, attorney for defendants in error; Jas. Denison, attorney for plaintiff in error.”

J. Denison, for plaintiff in error. I. This suit was commenced in 1848, was tried and a judgment was rendered for plaintiff. Upon a writ of error, the Supreme Court reversed the judgment, on the ground that the court below had no jurisdiction, i.e. the court below had no jurisdiction of the parties, and had not acquired jurisdiction, by the use of the necessary process.

II. All the proceedings below, previous to the remanding, were coram non judice, and a nullity. The agreement to waive citation, made by an attorney in a case where the Court has no jurisdiction, cannot bind the party.

III. If in the second prosecution, after the cause was remanded, the amended petition be considered as giving jurisdiction, then the previous proceedings being without jurisdiction and void, it was necessary, in order to acquire jurisdiction over the defendant, that the ordinary process should be resorted to, i.e. a citation should be issued, to be served personally or by publication. No citation was issued, and the record, as amended by the stipulation filed, does not show any appearance of defendant, after the case was remanded.

Jones & Ballinger, for defendant in error. The only question here presented is, whether the Court had jurisdiction of the defendant below. There is no question that the subject-matter of the suit is within the jurisdiction of the Court; and there can be as little question, that the appearance and answer of the defendant gave the Court jurisdiction of him. Jurisdiction of the person is acquired by the service of process, or something equivalent to such service. That the appearance and answer of the defendant made him a party to the suit, and gave jurisdiction over him, and that such appearance and answer cured all defects in the service, and waived even the issuance of process, see 5 Comyn's Dig., Tit. PLEADER (B) 1, p. 295; Barnes, 163-167; 3 Wils. R., 141; 3 Bl. Com., 298; 2 Co. upon Lit., 373, 374, 375; Bacon's Abr., Tit. PLEA (D); 3 Johns. R., 105, and authorities...