York v. State

• Citation: 11 S.W. 869
• Parties: YORK <I>v.</I> STATE.
• Decision Date: 07 May 1889
• Court: Supreme Court of Texas

11 S.W. 869

YORK

v. STATE.

Supreme Court of Texas.

May 7, 1889.

Appeal from district court, Travis county.

West & McGown, for appellant. J. S. Hogg and J. H. Robertson, for appellee.

STAYTON, C. J.

This action was brought by the state of Texas against F. B. York, a resident citizen of the state of Missouri, to recover the sum due to the state under a lease contract made between the parties. No service of citation was made on appellant within this state, but notice was served upon him in the state of Missouri in accordance with articles 1230-1233, Rev. St. Appellant, by proper pleading, and in proper time, denied the jurisdiction of the court over him personally, questioning the sufficiency of the notice served in the state of Missouri to confer it. This plea was overruled on June 20, 1888, and the cause was continued for the term. At the ensuing term appellant demanded a jury, paid the jury fee, and caused the case to be transferred to the jury docket; and, on the next day, renewed his plea to the jurisdiction of the court over his person, which was again overruled. Appellant then "waived the jury heretofore demanded by defendant, and stated to the court that he would not further answer in this case, inasmuch as his plea to the jurisdiction had been overruled, but rely on the same;" after which, on hearing, a judgment was rendered in favor of the state, from which this appeal is prosecuted. In reply to appellant's plea to the jurisdiction, the state pleaded that, by the lease contract, appellant had bound himself to pay the money sued for in the county in which the suit was brought; and that he had agreed in writing that any suit to be brought for the collection of money due on the contract sued on should be brought in that county. The lease contract contained agreements such as alleged, and the court below held that that part of the agreement last named bound appellant to submit to the jurisdiction of the court after notice made without the state was given in the manner prescribed by the statutes before referred to. Since the decision made in the case of Pennoyer v. Neff, 95 U. S. 723, it must be held that service made without this state, as it was upon appellant, is insufficient to confer jurisdiction on a court of this state to render a mere personal judgment against one a citizen of and resident in another state. Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. Rep. 165; Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. Rep. 586; Harkness v. Hyde, 98 U. S. 476; Cooper v. Reynolds, 10 Wall. 309. One of the grounds on which the decision in Pennoyer v. Neff is based makes it authoritative throughout the Union in all cases to which it is applicable; and, although there may have been some decisions made in this state asserting a contrary rule, we feel bound to follow it. In this case there was no judgment sought or rendered other than one strictly personal in its character.

It seems to be claimed that appellant made an appearance in the court below, and is therefore bound by its judgment. If it be true that he made such an appearance as gave the court jurisdiction over him personally, then it is unimportant whether the process or notice served on him without this state is of any validity whatever; for, if the court below so acquired such jurisdiction, then the fact of non-residence of appellant is a matter of no importance. If found within this state, and here served with proper process, this gives to a court of this state jurisdiction to render a personal judgment against a nonresident as fully as does the service of such process on a citizen of this state clothe the court with such power, unless it be in a case in which the plaintiff is also a non-resident, and the defendant without property within the state. Whenever the service of proper process will clothe a court with such jurisdiction, then that which is to be deemed in law an appearance by a defendant will confer on a court the like power. What is to be deemed an appearance may be determined by statute; and a statute declaring what shall be deemed an appearance, which makes notice to a defendant of the pendency of an action against him, and opportunity to know its nature and fully to defend it, necessary, does not contravene the letter or spirit of any constitutional provisions intended for the protection of private right. An appearance is said to be strictly voluntary when, without the service of process, a defendant in some manner indicates his intention to submit his person and cause to the jurisdiction of the court.

Article 1241, Rev. St., provides that "the defendant may, in person or by attorney, or by his duly-authorized agent, enter an appearance in open court, and such appearance shall be noted by the judge upon his docket, and entered in the minutes, and shall have the same force and effect as if citation had been duly issued and served as provided by law." The succeeding article provides that "the filing of an answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him." In either of the cases here provided for, the doing of the act prescribed would operate as a voluntary appearance in any case in which no process whatever has been served; and so, simply because it would clearly indicate the intention of the defendant to submit his person to the jurisdiction of the court. The record before us, however, leaves no ground for claim that appellant intended voluntarily to submit himself...