168 S.W.2d 697 | Tex. App. | 1943
Appellant’s cause has been remanded to this Court for disposition of assignments not heretofore considered (Norton v. Cheney, 138 Tex. 622, 161 S.W.2d 73); and reference is also made to our earlier opinion (Tex.Civ.App, 126 S.W.2d 1011) for necessary case history, to which may be added the following: That during the eight-year tenure of Mrs. Norton as guardian, several purchases and sales were made under court order of personal property and vendor’s lien notes; including a sale of lot to F. H. Herrling, where a special sales bond was executed with sureties ; and that none of the persons dealt with in such transactions were made parties to plaintiff’s bill of review. In other words, the suit was solely against the two sureties on Mrs. Nettie M. Norton’s primary guardian’s bond. Plaintiff having thus elected to collaterally attack the probate orders in question (of September 28, 1922, declaring Cheney a person of unsound mind, and consequent appointment of guardian), it was his burden, of course, to establish an utter and absolute invalidity of these orders upon the face of the particular record.
The trial court’s findings of fact were predicated on original orders and papers made and filed in aforesaid guardianship proceedings; concluding that on collateral attack, appellant’s showing of defects could not be sustained. Appellant’s assignments and propositions challenge these findings; complaining further of the court’s refusal to find certain additional facts relative to the guardianship record, and alleged to be apparent on the face thereof; involving principally (1) no notice or statutory service (Art. 4115); (2) no jury trial on insanity (Arts. 4270-4272), and (3) fatal insufficiency of pleading on which these orders were based.
It is clear from the foregoing language that the Supreme Court considered these probate orders to be voidable only, and not open to collateral attack; because, if same had been void for defects appearing upon their face (want of notice), the trial court would have had no alternative except to find for appellant Cheney. We must therefore hold that the recitals appearing in the order appointing Mrs. Norton guardian are conclusive of jurisdiction, and, in a collateral attack thereon, the failure to give formal notice provided by Arts. 4114, 4115, R.S. cannot be shown. Pure Oil Co. v. Reece, supra.
The trial court having held the Cheney probate record immune to collateral attack as a matter of law, it would seem that ap
Affirmed.
it is the writer’s personal opinion that the record under review is not at all analogous to Pure Oil Co. v. Reece. The two probate judgments before us are silent in regard to recitals of statutory notice; the record, on the other hand, conclusively disclosing a failure to comply with the mandatory ten-day notice (Story v. Story, Tex.Civ.App., 105 S.W.2d 370, writ refused); rendering the orders null and obviously exposing them to collateral attack. It is not disputed that the Norton petition for adjudication of Cheney’s alleged insanity, as well as for guardianship, was filed only two days prior to the renditions of September 28, • 1922; resulting in an impossibility of compliance with the law under which jurisdiction could be acquired; Arts. 4114, 4115.
In the Reece case, although the application for guardianship and the judgment of appointment appear as of the same date, yet the judgment recitals were that “Due notice of said application has been given.” [124 Tex. 476, 78 S.W.2d 933.] Judge Critz therefore properly applied the uniform Texas rule that a clear and definite recital of jurisdictional facts imports absolute verity and is conclusive of jurisdiction; and in 25 T.J., Judgments, § 330, pp. 857-860, we find the rule generally stated that “ * ⅜ ⅜ no evidence of any kind — not even the remainder of the record — will be received in contradiction thereof, even though such evidence would demonstrate that jurisdiction was not in fact acquired.” The present record carries its own death sentence across-its face, hence the rule of conclusive presumption relative to judgments on collateral attack does not apply. For if the recitals of a judgment roll, when thus attacked, show a situation in which legal service could not have been obtained under any circumstances, it would be opposed to both truth and reason to indulge in a presumption of its existence; 25-T.J., supra, Secs. 337, 346, 347, pp. 877, 891, 893.
Quite pertinent to my views thus briefly stated is the language of Judge German in Carroll v. McLeod, 133 Tex. 571, 130 S.W.2d 277, 281: “The authorities amply justify the statement that the matter of jurisdiction must be determined by the recitals of the record, and not by mere silence in same; and said recitals must affirmatively disclose a want of jurisdiction.”