Williams v. Ball

• Decision Date: 05 November 1879
• Citation: 52 Tex. 603
• Parties: JOHN WILLIAMS v. S. L. BALL ET AL.
• Court: Texas Supreme Court

52 Tex. 603

JOHN WILLIAMS

v.S. L. BALL ET AL.^a1

Supreme Court of Texas.

Nov. 5, 1879.

APPEAL from Delta. Tried below before the Hon. Green J. Clark.

Suit by S. L. Ball, J. D. Pickens, and R. H. Capers, on the 9th of February, 1877, against John S. Williams, appellant, in trespass to try title for sixty-four acres of land situate in Delta county. The plaintiffs, by their fourth amended petition filed August 8, 1878, claimed title by purchase at sheriff's sale, under a judgment rendered in Lamar county, in a Justice's Court, against A. S. Nowell. They alleged that Nowell derived title by purchase from Hutchins and wife, and they from one Cunningham. Allegations explanatory of certain credits upon the magistrate's judgment alleged to be fraudulent, and of variances between the citation and copy of petition, need not be noticed. The defendant answered by plea of not guilty.

The plaintiffs read in evidence a judgment rendered in favor of Overstreet & Rogers against A. S. Nowell for $12.50 principal and six cents interest, and costs of suit; execution ordered, signed F. Mills, J. P., and dated April 1, 1861. To the reading of this judgment defendant excepted, because it did not show “that A. S. Nowell was ever legally cited, waived service, or had his day in court.”

Plaintiffs then read in evidence the execution and sheriff's deed for the land, which was objected to for causes set forth in the opinion.

A deed from J. J. Cunningham to E. J. Hutchins dated June 17, 1874, and a deed from E. J. Hutchins to A. S. Nowell dated February 25, 1875, were read in evidence.

The testimony showed that one Richy owned the Overstreet & Rogers judgment, and caused the levy upon and sale of the land, and that E. J. Hutchins at the time of levy and sale had possession of the land by tenant.

Nowell was examined as a witness by defendant, and testified that he never owned or had possession of the land; that Hutchins made a deed to him, for the land, February 25, 1875, for which he paid nothing, and did not agree to pay anything; that Hutchins came to him and said he wanted to make Nowell a deed to the land to prevent Cunningham, his vendor, from swindling him out of it; that it was understood that he (Nowell) was to sell the land and pay the money over to Hutchins; that when the land was sold he (Nowell) posted notices disclaiming all interest in the land, and denying all knowledge of a judgment against him; that he never owed Overstreet & Rogers when the judgment was rendered, and that he was never cited to appear and answer in their suit against him.

Williams, the defendant, testified, for plaintiffs, that he was holding as a tenant under G. H. Long; which was objected to because plaintiff had closed and the evidence was not in rebuttal.

One of the plaintiffs testified that he did not recollect hearing of any other owner of the land than Nowell when he purchased.

Deeds from Nowell to Long dated September 8, 1876, and a deed from Long to Williams dated December 21, 1876, were in evidence.

No jury being demanded, judgment was rendered for plaintiffs; from which Williams appealed.

I. M. Long, for appellant.--Appellant objected to the judgment being read as evidence, because defendant Nowell was never cited to appear before said Justice's Court, and did not appear in person, or by attorney or agent. Hence the judgment was void. (46 Tex., 215;42 Tex., 328, 388;30 Tex., 51;28 Tex., 557;27 Tex., 250, 491;4 Tex., 308; 25 Tex., Supp., 132-137; Broom's Legal Maxims, pp. 701-703.)

No presumptions are indulged in favor of the jurisdiction of a court not of record, and its jurisdiction must always be shown affirmatively. He who claims title under these courts must show affirmatively the taking of every step essential to jurisdiction. Nothing will be presumed in his favor. (49 Tex., 743;28 Tex., 239;27 Tex., 496;4 Tex., 399.)

The statutes of Texas and the decisions of our courts hold and treat the Justice's Court as a special or inferior court, and not a court of record. (1 Tex., 664;7 Tex., 243;9 Tex., 413;25 Tex. Supp., 132;27 Ala., 396;6 Wheat., 119-127;5 H. & J., 132;11 Wend., 654; 8 Howe, 537; 4 McL., 262; 5 Cranch, 185; 2 Phil. Ev., Cow. & H. Notes, 196, 306; 4 Tex., 356; Dallam, 553.)

R. H. Capers, for appellees.

I. The judgment in this case was from a Justice's Court instead of a District Court, and the same precision and exactness are not required in the former as is in the latter, or any other court of general jurisdiction. (Freem. on Judg., pp. 46, 47, and authorities cited.)

II. The record clearly shows that if there be a variance between judgment and execution, it comes within the maxim de minimus non curat lex. We contend, that all that is necessary to make the title of plaintiffs good is a valid judgment, a valid execution, and a sheriff's deed. (15 Tex., 354;27 Tex., 667.) We further contend, that unless the judgment be absolutely void, the title under it is good, no matter how erroneous it might be. (34 Tex., 90, and authorities cited; 44 Tex., 517.)

III. We also contend, that unless an execution be actually void, it can only be objected to by one of the parties to the suit. (1 Tex., 124.) It cannot be attacked in a collateral manner. (46 Tex., 227.)

IV. The deed having passed from Hutchins and wife to A. S. Nowell, they were estopped, after the levy, from denying that it was without a valuable consideration. (29 Tex., 454, and authorities cited.)

BONNER, ASSOCIATE JUSTICE.

To the introduction in evidence in this case of the judgment of F. Miles, a justice of the peace, in the suit before him of Overstreet & Rogers v. A. S. Nowell, and which was a material link in plaintiff's chain of title, it was objected, by the defendant, that “the judgment failed to recite or show that A. S. Nowell was ever legally cited, or waived service, or had his day in court, when said cause was tried.”

The admission of the certified copy of the judgment of the justice of the peace, over this objection, is assigned as error, and brings up for our consideration the most material question in the case.

The general rule is, that the law will presume that a domestic court of general jurisdiction had power to make the judgment rendered by it, unless the contrary is shown by the record. The same presumption will not be indulged in favor of the judgment of a court of limited or special jurisdiction, but the facts necessary to the exercise of its jurisdiction must affirmatively appear upon the record.

All our courts are limited in their jurisdiction; but those created by express constitutional enactments, with general and exclusive powers to hear and determine all controversies within their particular judicial sphere, cannot be said to be courts of limited or special jurisdiction within the meaning of the above rule. (Bumpus v. Fisher, 21 Tex., 567;Guilford v. Love, 49 Tex., 744.)

In the case of Bumpus v. Fisher, 21 Tex., 567, in commenting upon the judgment of a justice of the peace, it is said:

“It is the tendency of American decisions to liberalize the rule of construction with reference to the inferior courts. Our Probate Courts generally would strictly come under the denomination of courts of special and limited jurisdiction. Still, liberal presumptions are indulged in reference to their orders and judgments, although that which gave the power to act, as the predicate for taking jurisdiction, might not appear in the record.

The rule, then, with respect to courts of limited jurisdiction, that everything must appear on the record strictly and affirmatively which will give them jurisdiction to hear and determine, is rapidly giving way by the application to our courts, as they are actually constituted, of the same principles which originally formed the rule with reference to their own courts in England.”

It was argued by the learned justice who delivered the opinion in the above case, that public policy, the nature of the powers and duties of justices of the peace, and the order of legal capacity which must be employed to fill this office, forbid that their judgments should be construed with every intendment against them, as if they were pleas in abatement, which had to be certain to a certain intent in every particular. (21 Tex., 569.)

In the elaborate opinion of Chief Justice Roberts in the subsequent case of Guilford v. Love, 49 Tex., 740, it was decided that our Probate Courts, though having, under the Constitution, only limited and special powers, are courts of general jurisdiction within the division of subjects allotted to them, and that their orders and judgments made within this scope should be upheld and shielded from collateral attack, the same as those of any other court of general jurisdiction.

It is said by the Supreme Court of Massachusetts, that “a justice of the peace exercised his jurisdiction mainly according to the course of the common law; his court is for many purposes a court of record, to which a writ of error will lie.” (Martin v. The Commonwealth, 1 Mass., 347, 389; Thayer v. The Commonwealth, 12 Met., 9; Valier v. Hart, 11 Mass., 300;Arnold v. Tourtellot, 13 Pick., 172;Gay v. Richardson, 18 Pick., 417.)

In our view, the rule which makes the judgment of a court of record binding upon the parties until reversed by proper proceedings therefor, although jurisdiction of the person was not properly obtained, is applied as well to a judgment of a justice of the peace as to one of a court of general jurisdiction. (Hendrick v. Whittemore, 105 Mass., 28.) In that case it is held, that there is a broad distinction between a case where the justice assumed to exercise a judicial power which he did not possess, and one where he possessed the...