Davis v. Robinson

70 Tex. 394 | Tex. | 1888

Collard, Judge.

The justice court act provides that: “All rules governing the issuance and service and return of citations issued out of the district and county courts, and providing for acceptance of service and entering appearance shall, except where otherwise provided by law, govern also the justice courts in so far as they can be applied to the proceedings of said court.” (Rev. Stats., art. 1572.) The authority for service . by publication of proceedings from justice courts is recognized in article 1577, fixing the appearance day in such cases on the first day of the second term after such publication. Also, in article 1617 it is provided that “no judgment other than a judgment by confession shall be rendered by a justice of the peace against any party who has not entered an appearance or accepted or waived service, unless such party has been' cited either personally or by publication.” Again: “Article' 1669, fixing venue, subdivision 8, declares that “suits against non residents or persons whose residence is unknown may be brought in the county and precinct where the plaintiff resides.” Again: Article 152 provides that “the judges and clerks of the district and county courts and justices of the peace may issue writs of original attachment, etc., upon the plaintiff, his agent or attorney, making affidavit in writing, stating, 1. That the defendant is justly indebted to the plaintiff, etc. 2. That the defendant is not a resident of the State,” etc. From the fore- ■ going extracts from the Revised Statutes it is perfectly clear to us that the justice court can obtain service by publication under the same rules and restrictions that govern district courts.

The judge trying this case below decided that the justice court had no such authority. This was error. He also held that the two judgments read in evidence as a foundation for the order of sale—the sale—and the deed of the constable to Donnell were null and void because the citations by publication were not published twenty-eight days before return day, the cases being tried at the next term after return day. The law requires that the “citation shall be published once in each week for four successive weeks previous to the return day thereof.” We are of opinion the proper construction of the law is that the publication shall be for full twenty-eight days before return day, once in each week, for four successive weeks. The citations issued by the justice of the peace were inserted in the Cleburne Telegram, first on the second of September, 1885, and once in each week for three weeks thereafter, all the insertions being before return day, which was on the twenty-eighth of the month. They were not published ful! twenty-eight days, as required by the statute, before return day. Judgments were rendered against the defendants at the next succeeding term of the court, the defendants not appearing. Each judgment has the following recital: “And the defendant failed to appear, but wholly made default; and it appearing to the court that the defendant * * * has been.duly and legally cited and served with citation as the law requires.”

We are not prepared to say that even if the judgments had not recited the fact of service, the citation and return would, show no service, and for that reason we can not say that, without the recitals in the judgments, the record would affirmatively show want of jurisdiction. The record would show that the court acted prematurely; that it should not have tried the cases before the next term after the judgments were taken, but it would not show there was in fact no service, the citations, having been published four consecutive weeks and full twenty-eight days before rendition of the judgments. The citations and returns show that the justice tried the cases before the defendants were required to appear and make defense—not that there was no service. In Treadway v. Eastburn, 57 Texas, 212, the writ was dated July 24, 1866; the return of the sheriff was dated the twenty-fifth of July, 1866. It was apparent from the writ and the return that no service could have been made, and, judging from that alone, the court so declared, and held that, had the judgment been silent as to service, it would have been a nullity, and subject to collateral attack. However, the judgment in that case recited that defendant was “duly served with process,” and the Supreme Court held that the judgment being the last final act of the court upon the subject, it was conclusive of the fact stated.

Opinion adopted March 27, 1888.

In the case before us, the judgments recite that there was service, and it must be held that they import absolute verity in a collateral proceeding, as this evidently is. Defendants are allowed two years after the judgments obtained upon service by publication in which to have the proceedings reviewed, but such proceedings must be in the court that rendered the judgment, upon a proper showing.

Our conclusion is that the court below erred in holding the judgments of the justice of the peace void, and that the cause should be reversed and remanded for a new trial.

Reversed and remanded.