No. 2373. | Tex. | Feb 21, 1913
Sue E. Baker and Edward H. Hopkins and wife were the owners of 1,043 acres of land in a survey patented to Wm. Francis in Harris County. Sue E. Baker filed a suit in the District Court of Harris *595 County against Edward H. Hopkins and Clara B. Hopkins and their unknown heirs, whose residences were unknown. In that suit Sue E. Baker claimed two-thirds of the land, alleging that the remaining one-third belonged to the defendants. Service was had by public citation and judgment was rendered in favor of Sue E. Baker for two-thirds and Edward and Clara B. Hopkins and their unknown heirs for one-third, awarding partition, which was had, and 348 acres were set off to the Hopkins and their heirs. Edward H. and Clara B. Hopkins were dead at the time the suit was filed. None of the heirs appeared and the District Court appointed an attorney to represent them. The papers in the case, except the statement of facts, were lost.
The land was regularly partitioned and report approved and the court entered judgment against the heirs of Hopkins for $75.00, attorney's fee, and one-third of the costs, and ordered sale to be made of the land set apart to the defendants, if the sum adjudged should not be paid in twenty days, which was not done, and the land was sold at public outcry to Eva W. Walker, who conveyed it to Cain. The sale was approved by the court.
The question for decision is, was the judgment of the District Court, which ordered the sale of the land, void? The papers having been lost we assume that the proceeding was regular and the citation for publication in proper form. The question turns upon the compliance or non-compliance with the statute by the sheriff in publishing the citation and making return thereof.
Article 1236 provides that the sheriff shall cause publication of the citation to be made "once in each week for eight successive weeks previous to the return day of such citation."
Article 1238 reads: "The return of the officer executing such citation shall be indorsed or attached to the same, and shall show when the citation was executed and the manner thereof, specifying the dates of such publication, shall be accompanied by a printed copy of such publication, and shall be signed by him officially."
The judgment entered was that Sue E. Baker recover two-thirds of the land and that Edward H. Hopkins and Clara B. Hopkins and their unknown heirs recover one-third, ordering partition, etc., and adjusting costs.
The procedure in such case is prescribed by Article 1346, Revised Statutes, thus:
"When service of process has been made by publication, and no answer has been filed within the time prescribed by law, the court shall appoint an attorney to defend the suit, and judgment shall be rendered as in other cases, but in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as part of the record thereof."
The judgment in this case did not contain any recital as to service, but the statement of facts contained a copy of the citation by publication and this endorsement thereon by the sheriff."
"Came to hand on the 24th day of March, A.D. 1900 at 10 o'clock a.m., and I executed the within citation, by publishing the same in the Houston Daily Herald, a newspaper published in the County of *596 Harris, once in each week for eight successive weeks previous to the return day hereof. Said publication was made respectively on the 15th and 25th days of May, 6th days of July, 1900, and a printed copy thereof is returned herewith. A.R. Anderson, sheriff Harris County, by A.L. Conway, deputy."
The judge's findings of fact recited the return service as shown above, except as follows: "Said publication was made respectively on the 15th and 25th days of May, 1900, and on the 8th, 15th, 22nd, and 29th days of June and on the 6th day of July, 1900."
The defendant in error having replied to the application, the application is granted and we will dispose of the case.
The defendant in error asserts that interveners did not prove that they were heirs of Edward H. and Clara B. Hopkins, therefore, were not entitled to recover. The District Court found against the contention and we are not required to hunt through the record for evidence to sustain the finding.
The only question to be decided is does the record show with reasonable certainty that the service by publication was not made according to the requirements of the statute. In Edrington v. Allsbrooks,
If this were a review of the proceedings on appeal from the judgment of Sue E. Baker v. Hopkins, there would be no difficulty in determining the issues. However, as a collateral attack on that judgment this court is confined to the record of that case with the burden on the plaintiffs in error.
If the judgment assailed recited service we would be bound to accept that as correct, but the judgment contains no recital of service, therefore we must look to the entire record, and, if that shows a failure to observe the law in a material point, the judgment must be held to be void. Byrnes v. Sampson,
Article 1236, Revised Statutes, required that the citation be published "once in each week for eight successive weeks previous to the return day of such citation," and Article 1238 required that the return of the officer shall be endorsed upon or attached to the citation, the return to show when the citation was executed and the manner thereof, specifying the days of such publication. The law undertook to make specific provision to test the correctness and truth of the return. The statute did not authorize the sheriff to state that he had caused the writ to be published eight successive weeks, but to make his return showing that he had done so. (Art. 1238, R.S.)
The statement of facts was by the statute made a part of the record. (Art. 1346, R.S.) In the statement of facts is found a copy of the citation and the sheriff's return thereon, in which the sheriff states that he published the citation for eight successive weeks, but specifies the days on which he caused it to be published as the 15th and 25th days of May and on the 6th day of July, 1900. It is apparent *597 that the publication was not in successive weeks nor sufficient in number. The 15th and 25th days of May may have been in successive weeks, but the 6th day of July could not be in the week next succeeding the 25th day of May; June intervened. The return shows only publication on three days.
If we accept the finding of the district judge the publications were successive, but the citation was published only seven weeks, whereas the law required it to be published for eight successive weeks.
The record shows that in the case of Sue E. Baker v. Edward H. Hopkins and others the service was attempted to be made by publication, but the requirements of the law were not complied with, the court did not acquire jurisdiction of the defendants in that suit, therefore, the judgment rendered against Edward H. and Clara B. Hopkins and their unknown heirs is void, and the sale under which Cain claims title was void. Cain acquired no title to the land and the District Court correctly entered judgment in favor of the interveners, the plaintiffs in error in this court.
It is ordered that the judgment of the Honorable Court of Civil Appeals be and it is hereby reversed and the judgment of the District Court is affirmed.
Reversed and judgment of District Court affirmed.