Kitchen v. Crawford

13 Tex. 516 | Tex. | 1855

Wheeler, J.

In the late case of Mussina v. Moore, Supra, it was held that the 129th Sec. of the Act to regulate proceedings in the District Court, which authorizes a “petition of review ” for the reversal of judgments rendered in cases where service has been by publication only and on an ex parte hearing, (Hart. Dig. Art. 783,) does not contemplate a bill of review strictly and technically, as known to Courts of Chancery, but was intended to afford a more ample remedy, and to give the defendant, who, from want of actual notice of the suit, had been deprived of the opportunity of being heard to contest the plaintiff’s demand and assert his matters of defence, upon a proper application, the right to a retrial and reinvestigation of the merits of the case; and that the petition for this purpose will be deemed legally sufficient, on demurrer, if it appear by its averments that the defendant had a meritorious defence to the action, and that he was deprived of the opportunity of availing himself of it at the trial, or of moving in proper time for a new trial, by reason of the want of personal service, or actual notice of the suit.

The petition in this case is clearly sufficient under the ruling in the case of Mussina v. Moore, and this, might suffice for the present disposition of the case. But other questions have been raised in argument, which will necessarily arise in the future progress of the case, and some notice of them hear may remove the occasion for a second appeal.

There are certain predicaments of fact, or conditions, necessary to authorize service by publication. These are, that the defendant is not a resident of this State; that he is absent from the State; that he is a transient person ; or that his residence is unknown to the plaintiff, his agent or attorney. (Hart. Dig. Art. 813.) Except upon one of these conditions, citation by publication is not legal service, and the proceedings and judgment had against the defendant thereupon, will be irregular and voidable for the want of it. The law regards the affidavit of the party, his agent or attorney, sufficient prima facie evidence to authorize the proceeding by publication. But it is not the making of the affidavit, but the truth of it, that is, the existence in fact of the assumed condition, which enables the Court to acquire jurisdiction over the person of' the defendant by publication. The law proceeds upon the prima fade evidence of the fact afforded by the affidavit; but that is but prima facie evidence, and maybe rebutted by proving the contrary; which, we think, it was the intention of the law to enable the defendant to do by the direct proceeding which it gives by a petition of review to revise the judgment. And if in this proceeding it be proved that a predicament of fact did not exist which authorized service by publication, it will be ineffectual, and the proceeding had thereupon will be set aside, as irregular. This view of the effect of service by publication seems too clear upon principle to require the support of authority, and a single reference will suffice to show that it is not a new view. In the case of Snowden v. Snowden (1 Bland. 550) the Chancellor said, “ The publication (against a non-resident) is to stand in the “ place of actual notice only in case the party be in fact a. “ non-resident; and therefore, if he does not in fact at the 46 time reside out of the State, such a substitute for the actual 64 service of process cannot be resorted to for the purpose of' 86 enabling the Court to act upon the case; and therefore, the 88 decree will be void, since the publication against a non-resi88 dent can in no way be fashioned, like a commission to take 88 the answer of an infant defendant, to suit both alternatives 88 of a residence or a non-residence; and consequently, if the 86 publication be not valid upon the ground of the actual non-88 residence of the party, it is a nullity to all intents and pur88 poses whatever.” (Id. 558.) These observations will serve sufficiently to illustrate the view of the case we have taken. But it is to be observed that the question as to the effect of the decree rendered in such a case was not before the Court in that case, and the observation that it would be void, is to be regarded as dicta. In the case of Jermain v. Langdon (8 Paige, 41) Chancellor Walworth, though he did not express a decisive opinion, because it was not necessary in that case, stated that it was his impression that, where the order for publication has been obtained upon a proper affidavit of the defendant’s non-residence, the proceedings and decree would not be void for want of jurisdiction, though the defendant had a residence in the State, but would be merely voidable for irregularity. 88 There can be no doubt, however, (he said) that 88 it is clearly irregular to proceed against a party, as absen88 fee, who has a fixed and notorious. residence in the State.” And it was held, under the statute of that State, that if the defendant applies the first opportunity after he has notice of the proceedings against him, and before a sale under the decree, he will be let in to defend of course, and without costs; (and see Evarts et al. v. Barker, Id. 506.)

If, therefore, in the present case, the defendant was not in fact a non-resident, or absent from the State, but was present, having a fixed residence within the State, which was known, or, what is the same in law, which might have been known to the plaintiff by the rase of proper diligence, and it had been so averred in the petition, proof of it would avoid the service by publication, and let in the defendant to all the defences to which he would have been entitled if there had been personal service. But the petition for review does not negative every predicament of fact, which authorized service by publication, but only that the defendant was a non-resident. It does not aver that his residence either was, or by the use of proper diligence might have been known to the plaintiff. It does not very distinctly aver that he had a fixed residence in any one county of the State; but only that at and before the time of instituting the suit, he was a resident of Burleson county, “ and has since that time lived in Burleson and Milam counties.” It does not appear by averment' that upon a proper affidavit, service might not have been legally made by publication. But it does appear that the defendant had a meritorious defence to the action, and that he had not personal service, or actual notice of the suit, and was thereby deprived of the opportunity of making his defence. The case, therefore, comes within the decision in the case before cited of Mussina v. Moore, and the defendant is entitled to a hearing and a retrial of the case upon the merits.

The injunction in this case was granted by the Judge of the third District, and it is made a question whether it was competent for the Judge of that District to grant an injunction to restrain the execution of process issued and returnable in the seventh District. The power is conferred upon the District Judges by the Constitution (Art. 4, Sec. 10) “ to issue all 66 writs necessary to enforce their own jurisdiction, and give “ them a general superintendence and control over inferior jurisdictions;” unlike that conferred upon the Judges of the Supreme Court, which is confined to certain enumerated writs 61 and such other writs as shall be necessary to enforce their own jurisdiction, and also to compel a Judge of the District Court to proceed to trial and judgment in a cause.” (Art. 4, Sec. 3.) It was left to the Legislature to prescribe regulations for the exercise of the power conferred upon the Judges of the District Courts, and the limitations and restrictions which should govern its exercise. And in the Act to define the powers and jurisdiction of the District Courts, the authority to issue certain enumerated writs, among which writs of injunction are included, is conferred upon the Judges, “and each of them,” to be exercised “ either in vacation or Term time,” without any limitation or qualification, except as respects writs of mandamus. (Hart. Dig. Art. 643.) Other statutes prescribe the terms on which writs shall issue, but contain no restriction upon the general power of the Judges as respects the jurisdictional limits within which it may be exercised. The Judges are elected for certain Districts, in which they are required to reside, (Const. Art. 4, Sec. 6, and Hart. Dig. Art. 640,) but, in the discharge of their duties, they may exchange Districts “ when they may deem it expedient,” and discharge the functions of their office in Districts other than those for which they were elected. (Const. Art. 4, Sec. 14.) They are conservators of the peace throughout the State. (Hart. Dig. Art. 641; Const. Art. 4, Sec. 9.) And there is in the Constitution and laws, nothing to restrict to any certain judicial or territorial limits less than those of the State, their general power to grant remedial writs. Whether the party applying for a mandate, which is designed to operate upon persons or things within a District other than that in which the Judge resides, shall set forth in his application matter of excuse for not addressing it to the Judge of the District in which the mandate is to operate, is a matter which must rest in the discretion of the Judge to whom the application is made, and cannot be the subject of revision upon appeal to this Court.

We are of opinion that the Court erred in sustaining the demurrer to the petition, and that the judgment be reversed and the cause remanded.

Reversed and remanded.