Wilkerson v. Schoonmaker

• Decision Date: 13 June 1890
• Citation: Wilkerson v. Schoonmaker, 14 S.W. 223, 77 Tex. 615 (Tex. 1890)
• Court: Texas Supreme Court
• Parties: WILKERSON v. SCHOONMAKER <I>et al.</I>

14 S.W. 223

WILKERSON v.SCHOONMAKER et al.

Supreme Court of Texas.

June 13, 1890.

Appeal from district court, Milam county.

McGregor & Scott, for appellant.Hefley & Wallace, for appellees.

HENRY, J.

Appellant commenced this suit in the form of an action of trespass to try title to recover 205 acres of land.The evidence shows that the land was conveyed to Mary A. Rudicil, the wife of W. A. Rudicil.She, for the purpose of enabling her son, J. A. Rudicil, to sell it, and for no other consideration, made him a deed for the land.Subsequently she married J. Schoonmaker.On September 4, 1883, J. A. Rudicil reconveyed the land to Mary A. Rudicil in that name, instead of her then name, — Schoonmaker.This deed was held by the grantee, but not filed for record until the hour of 12:30 A. M. on the 5th day of February, 1884.Appellant, holding a note for $50 executed by J. A. Rudicil and Mary A. Rudicil to McGregor & Lott, and indorsed by them, brought suit upon it against all of said parties in a justice's court.On the 26th day of November, 1883, judgment by default, for the amount of the note, was rendered against J. A. Rudicil and Mary A. Schoonmaker and her husband, John Schoonmaker.Upon this judgment an execution was issued, and the land in controversy was levied upon as the property of J. A. Rudicil, and his interest in it was sold under the levy on the 5th day of February, 1884, to the appellant, C. P. Wilkerson, and a deed for it was made to him by the officer who made the sale.This cause was tried without a jury, and judgment was rendered in favor of the defendants.Appellant assigns errors as follows: (1)"The court erred in allowing the judgment of the justice of the peace to be attacked by a collateral proceeding."(2)"The court erred in permitting the introduction of a deed purporting to have been executed by J. A. Rudicil to M. A. Rudicil as evidence in this cause, because there was no precedent for its introduction, and because said deed was not executed, nor did it invest title in the land in controversy in M. A. Schoonmaker, a party to this cause, but conveyed a certain tract of land to M. A. Rudicil, who was then, so far as the pleading went, a stranger to this cause; it not being alleged in any of plaintiff's pleadings, nor shown properly in evidence, that Mary Schoonmaker and Mary Rudicil were one and the same person; and because the evidence showed a fraud in the execution of this deed to his mother by J. A. Rudicil long after, and within his knowledge of, her said change of name by marriage to John Schoonmaker; and because there was not execution of a deed valid, and for a valuable consideration, by J. A. Rudicil to his mother, M. A. Schoonmaker; and because the circumstances show that the said deed was made to defeat said execution and judgment in favor of said Wilkerson, and in fraud of his rights."The judgment of the justice of the peace contains no recital with regard to the service of citation upon J. A. Rudicil.Upon the question of notice to him of the pendency of the suit it is silent; neither showing that he did or that he did not have such notice.The return on the original citation was introduced in evidence, and shows that he was not served with that.He testified that he was never notified of the pendency of the suit.R. Lyles, an attorney, testified that he was present at the justice's court when the judgment was rendered, and that J. A. Rudicil did not appear by attorney or otherwise.He further testified that he examined the papers, and found a citation to J. A. Rudicil, Mary A. Rudicil, W. M. McGregor, and E. H. Lott; that this citation was returned, "Executed as to Mary A. Rudicil;" and as to J. A. Rudicil, "Not found;" that he informed McGregor there was no service on J. A. Rudicil, and that McGregor then drafted a judgment, which the justice of the peace entered up in the case; that he examined the papers, at the request of McGregor, to ascertain if judgment by default could be properly taken against J. A. Rudicil and Mary A. Rudicil.McGregor testified as follows: "I think I examined the papers in the case.My recollection is that there was service perfected on J. A. Rudicil.There was one citation from San Antonio to J. A. Rudicil returned, `Not found.'There was one to San Antonio returned `Served.'It is only my impression now, and simply as an opinion, that there was service."The justice of the peace who rendered the judgment testified that his memory was that a citation issued to San Antonio for J. A. Rudicil was served."Remember sending citation out there, and that is all.Don't remember its having been returned."

By repeated decisions it has been announced by this court"that a domestic judgment of a court of general jurisdiction upon a subject-matter within the ordinary scope of its power and proceedings is entitled to such absolute verity that in a...