Wiederanders v. State

• Decision Date: 05 May 1885
• Docket Number: Case No. 5019.
• Citation: 64 Tex. 133
• Parties: C. G. WIEDERANDERS ET AL. v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

64 Tex. 133

C. G. WIEDERANDERS ET AL.

v.THE STATE OF TEXAS.

Case No. 5019.

Supreme Court of Texas.

May 5, 1885.

ERROR from Burnett. Tried below before the Hon. W. A. Blackburn.

The opinion sets forth the facts.Robertson & Williams and A. J. Peeler, for plaintiff in error, on publication of notice, cited: Pasch. Dig., art. 3660; R. S., arts. 1773, 1236; Hill v. Faison, 27 Tex., 430;Stephenson v. Railroad Co., 42 Tex., 169;Simpson v. Mitchell, 47 Tex., 572;Stegall v. Huff, 54 Tex., 193;State v. Teulon, 41 Tex., 249.

On the claim of the alien heirs, they cited: Pasch. Dig., arts. 3657, 3658; R. S., arts. 1770, 1771; Const. 1869, sec. 20, art. 4; Hughes v. State, 41 Tex., 10;State v. Teulon, 41 Tex., 249.

On the sufficiency of the evidence to sustain the judgment, they cited: Pasch. Dig., arts. 3657, 3658; R. S., arts., 1770, 1771; Hughes v. State, 41 Tex., 10;State v. Teulon, 41 Tex., 249; Const. Republic, sec. 10, Gen. Prov.; Pasch. Dig., arts. 44-48; Sabriego v. White, 30 Tex., 576;Settegast v. Schrimpf, 35 Tex., 323;Andrews v. Spear, 48 Tex., 567;Hanrick v. Hanrick, 54 Tex., 101; Ortiz v. Benavides, Galv. term, 1884; Osterman v. Baldwin, 6 Wall., 116;Airhart v. Massieu, 8 Otto, 491;Phillips v. Moore, 10 Otto, 208.

No briefs on file for defendant in error.

STAYTON, ASSOCIATE JUSTICE.

It appears that at some time prior to April 11, 1878, the state, by its proper officer, instituted a suit in the district court for Burnett county to escheat two tracts of land situated in that county, alleged to have belonged to Donald Smith, who died in the year 1852.

Johnson and Billick were alleged to be in possession of the land, and Robert T. Penn was alleged to set up some claim, and they were all made parties and brought before the court as defendants.

While the petition thus stood, the court ordered scire facias to issue requiring all persons interested in the estate to appear and show cause why the land should not be vested in the state.

The writ thus directed to issue, containing, as directed by the court, a substantial statement of the contents of the petition with a description of the two tracts of land, was issued July 23, 1878, and was published in a newspaper published in the county for four weeks, the last publication being on August 21, 1878.

It appears that another petition was filed December 31, 1879, but nothing appears as to its contents; but on April 23, 1880, what is termed an amended petition was filed, and in that the escheat of the same two tracts of land named in the first petition and in the scire facias published was sought; as was the escheat of two tracts of land, not mentioned in the original petition, alleged to have been the property of Donald Smith at the time of his death, situated in Lee county, of one of which tracts the defendants Wiederanders and Caspar were alleged to be in possession, and of the other, Conrad Frash was alleged to be in possession.

Service was made on the defendants, Wiederanders, Caspar and Frash, but no publication was made of the proceedings as required by art. 1773, R. S., after the filing of the amended petition on April 23, 1880.

Ann Watt, Ann Smith and William Smith, representing themselves to be citizens of Aberdeen, in Scotland, in the kingdom of Great Britain, on December 23, 1879, made themselves parties to the action, claiming to be the sole heirs of Donald Smith, and as against them a plea of alienage was filed by the state.

On May 11, 1881, a final judgment was rendered in the case, vesting the title to the four tracts of land in the state, and ordering the sale thereof as escheated lands, from which the defendants, Wiederanders, Caspar and Frash, prosecute a writ of error.

The first assignment of error is: “The court was without jurisdiction against the defendants in said cause, because of the want of due and legal service of process and publication of order citing parties in interest to appear and defend, as is required by law.”

The purpose for which proceedings of this character are instituted is to have a judicial declaration, in the form of a solemn judgment made by a court having jurisdiction of the subject-matter, and of the persons in interest in so far as publication can give it, that the facts exist which, under the law, cast title upon the state to property with which, at some former time (in case of lands), it had clothed a person with title.

The statute thus declares: “If any person die seized of any real, or possessed of any personal, estate, without any devise thereof, and having no heirs, or where the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, such estate shall escheat to and vest in the state.” R. S., 1770.

The succeeding articles declare under what circumstances the proper officer may institute proceedings to have the property adjudged to belong to the state.

In addition to requiring scire facias to be served upon such persons as are alleged to be in possession of or claiming the estate, the statute further requires that “the court shall make an order setting forth briefly the contents of such petition, and requiring all persons interested in the estate to appear and show cause why the same should not be vested in the state, which order shall be published as required by art. 1236.”

The constitution expressly confers upon the district courts jurisdiction of “all suits in behalf of the state to recover penalties, forfeitures and escheats” (art. V, sec. 8, Const.); but the same constitution declares that “the legislature shall provide a method for determining what lands have been forfeited, and for giving effect to escheats.” Const., art. XIII, sec. 1.

The law now in force must be deemed to be a law providing a method for giving effect to escheats. R. S., 1770-1788.

Although the constitution gives to the district courts jurisdiction over the subject-matter of escheats, yet that jurisdiction can be called into exercise, in a given case, in the manner or method prescribed by the legislature and in no other.

The legislature has declared, as a prerequisite to the exercise of this jurisdiction by a district court, that a petition shall be filed by the proper officer, containing averments of certain facts, and praying for a writ of possession in behalf of the state. Without the filing of a petition by the proper officer, substantially in accordance with the requirements of the statute, it is certainly true that the jurisdiction conferred by the constitution on the district courts could not be legally exercised. The legislature has further declared, that in addition to actual notice which is required to be given to persons in possession of or claiming the estate sought to be escheated, notice, setting forth briefly the contents of the petition, and requiring all persons interested in the estate to appear and show cause why the same should not be vested in the state, shall be published in a newspaper published in the county, or if there be none published in the county, then in the nearest county where a newspaper is published, once in each week for eight successive weeks previous to the return day of the citation. R. S., 1773, 1236.

So stood the law when the plaintiffs in error were brought into the case; prior to which time there had not been any effort made to have declared escheated the two tracts of land in Lee county. When the proceeding was originally instituted against the land situated in Burnett county, publication was required, as under the law now in force, but only for four weeks. P. D., 3660.

Could the notice thus required by law be dispensed with, and the court exercise, in the given case, the general jurisdiction given over the subject of litigation by the constitution?

Where the constitution expressly requires that the legislature shall provide a method for giving effect to escheats, it thereby, in effect, declares that the jurisdiction conferred in general terms shall be exercised in the manner or method and under the rules prescribed by the legislature.

If the courts may disregard the rules made by the legislature, in reference to this matter, in one respect, they may do so in another, and the rules which the constitution made it obligatory on the legislature to enact for the express purpose of regulating and calling into exercise the general jurisdiction of the courts may be set at naught.

It was held in the case of The State v. Teulon, 41 Tex., 252, that the failure to give notice by publication, as required by the statute in cases of this kind, required a judgment rendered escheating property to be reversed.

We are of the opinion that the publication of notice, required by the statute, is made necessary to the exercise of the general jurisdiction conferred, and that without it the district court had no jurisdiction to try the case.

The object of such a proceeding is not simply to have a decree declaring the escheat and vesting the title in the state; but by and through process, to be issued under the judgment, to divest not only the title of persons entitled to take the property of the deceased as his heirs, if perchance any such there be, but also by a sale to divest the title of the state, and to start, and confer upon the purchaser, a new title deraigned directly from the sovereign of the soil. R. S., 1777-1780.

The proceeding, while not strictly a proceeding in rem, has many of its characteristics; yet the statute does not direct a seizure of the thing, which, in some cases, has been held to support a judgment strictly in rem. It applies to personalty as well as realty. The mere institution of the proceeding creates no presumption that there is no one capable of taking the estate under the rules regulating the descent of estates of deceased persons--the presumption is to the contrary; and the effect of the judgment, if rendered after all persons interested in the estate are notified of the pendency and purpose of the proceeding in the only...