Moore v. Perry Et Ux

35 S.W. 838 | Tex. App. | 1896

Lead Opinion

John Perry and his wife Lucy Perry brought this action in the District Court of Harris County on March 16, 1894, against Isaac Heffron, W.J. Moore and Frank Moore, to set aside a judgment and decree of said court rendered against them by default, January 15, 1894, in the suit of Isaac Heffron v. John Perry and Lucy Perry for the amount of a street improvement certificate and foreclosure of a lien therefor on their homestead in the city of Houston; and to set aside a sale of said property made by the sheriff of Harris County in pursuance of said decree, at which W.J. Moore became the purchaser, and to cancel the sheriff's deed to said Moore. The cause was submitted without a jury, and plaintiffs recovered judgment setting aside the judgment in the foreclosure suit and reinstating the case, also setting aside the sheriff's sale. The property upon which the lien for street improvement was established was the homestead of the plaintiffs, and was not subject to a lien for the improvement certificate which was sued upon, but it did not so appear from the record in the suit. The grounds presented for setting the judgment aside were:

(1) The judgment was void because the citation did not have the seal of the court affixed to it.

(2) The petition did not set out a good cause of action and was not sufficient to sustain a judgment by default.

(3) The certificate set out in the petition showed that the property upon which the lien was sought to be established was owned by John and Lucy Berry and not Perry, and the citation recited that the certificate was issued by "the Mayor and Board of Aldermen of the City of Houston," when the name of the corporation was "the Mayor, Aldermen and Inhabitants of the City of Houston."

The petition in the foreclosure suit against John Perry and Lucy Perry was filed May 16, 1893, and represented that plaintiff was the owner and holder of a certain street improvement certificate issued by the city of Houston to the plaintiff May 11, 1891, a copy of which was set out, certifying that Isaac Heffron, or the holder thereof, was entitled to the sum of $49.69 from the owner of owners of the premises described for sewer improvements made on Jackson and Hadley streets in the LeBranch sewerage district of the city of Houston, Harris County, Texas, under a certain contract between Heffron and the city, and referred to an ordinance authorizing the contract; the land was described, and it was stated in the copy that the owner was John and Lucy Berry; the manner and time of payment was set out; and the certificate contained the recital that it was "issued under authority of section 23, et seq., of the charter of the Mayor, Aldermen and Inhabitants of the City of Houston, and the sum of money for which the same is issued, being the proportionate cost of said improvement assessed against the property herein described as aforesaid, is a tax against the owners thereof, *208 and a lien upon said property as provided in said section of said charter."

The petition further represented that said certificate was issued in accordance with the provisions of the charter of Houston; that all preliminary steps prescribed by the charter in relation to the construction of the improvements to pay for which the assessment had been made, and in relation to the making of said assessment, and in all the requirements and prerequisites of law necessary to authorize the issuance of the certificate and to give validity to the same, were duly peformed; that by reason of the proceedings and the execution and delivery of the certificate to said Isaac Heffron, the owner or owners of the property described became liable to pay the said Isaac Heffron the sum of money and interest specified in the certificate, and a lien was fixed upon the property to secure the payment of the same, etc.; that the defendants were then the owners of the property described in the certificate, and as such were liable for the payment of said sums due as stated, and that, though often requested, they had failed to pay the same, etc.

A citation was issued July 26, 1893, in due form, except that it did not have, the seal of the court affixed to it. John Perry and Lucy Perry were cited to appear at the next regular term of the District Court of Harris County, to be held on the first Monday in October, 1893. It was duly served on them the day it was issued. The defendants failed to appear, and judgment was rendered against them by default for the amount of the certificate, with foreclosure of a lien on the property. There is nothing in the petition, citation or judgment to show that the property was the homestead of John Perry and Lucy Perry, or that they were man and wife, or that they resided on the property.

There was a notation on the original petition, "9-26-93," and there was evidence that it was the custom in the office of the district clerk to note the date of the issuance of citations in that manner, but the court below found that the citation, issued without seal July 26, 1893, was the only citation that had been issued in the case, and so found in accordance with the weight of the evidence. The judgment was rendered on the 15th day of January, 1894, and contained the recital, "and the defendants John Perry and Lucy Perry, though duly and legally cited to appear and answer herein more than ten days prior to the 4th day of December, 1893, failed so to do, but wholly made default," etc.

An order of sale was regularly issued upon the said judgment, and the property duly advertised for sale on March 6, 1894, and was then sold to the defendant W.J. Moore for the sum of $375, at the bid of the defendant Frank Moore, who was his agent, and the sheriff executed a deed therefor to said W.J. Moore. After the sale, but before the money had been paid, John B. Williams, a deputy of the district clerk, called Frank Moore's attention to the fact that the citation was without a seal. The property was worth about $4000, with a vendor's lien on it for about $900. There is no reason alleged or shown, in addition to inadequacy of price, why the sale should be set aside. John Perry testified *209 that he did not know that his property was advertised for sale until the day after it was sold, and then went to see Mr. Dennis, upon whom he relied to look after his sewerage tax, and had promised to protect his sewer for him.

While the suit instituted by the plaintiffs in this case was a direct attack upon the judgment and sale in the foreclosure suit, it was not authorized by law. A bill of review to revise a judgment for errors apparent upon the face of the record is not recognized in this State. Seguin v. Maverick, 24 Tex. 526. Plaintiffs' remedy was by appeal or writ of error. The practice of writ of error coram nobis could not authorize the suit, because, as stated, the error was apparent upon the face of the record. Milam County v. Robertson, 47 Tex. 231. The citation was a part of the record and showed for itself that the seal of the court had not been affixed thereto, and the fact that the omission was not called to the attention of the court, and that the judge believed that there was a valid citation when the judgment was entered, cannot affect the question. The error was apparent, and if the cause had been brought before this court by appeal or writ of error, the judgment would have been reversed. Frosch v. Schlumpf, 2 Tex. 422. Nor is this a suit for a new trial to be maintained upon equitable grounds showing that the plaintiff had a valid defense which, without fault on his part, he had been prevented from setting up, and which can not be availed of on appeal or writ of error. Goss v. McClaren,17 Tex. 107.

But if for any reason the judgment of the court in the forclosure suit is void, plaintiffs could maintain this suit as an action to recover the property, for the judgment would be subject to attack in any proceeding collaterally or otherwise. If the judgment is void, the sale would also be void.

It has been said in some of the decisions that a citation without a seal is void. Frosch v. Schlumpf, 2 Tex. 422; Chambers v. Chapman, 32 Tex. 569; Block v. Weiller, 2 Willson C.C., 503; Wells v. Ames Iron Works, 3 Willson C.C., 296. But in all such cases, the judgment of the court below was before the appellate court for revision by writ of error. Whenever judgment has been rendered against a party who has not been served with process, it is a void judgment, and if the process by which the party is sought to be brought into court is so utterly defective that it cannot be amended, it seems that it would be void process, and that the judgment rendered on such process should be held void and open to attack collaterally or otherwise. In the case of Witt v. Kaufman, 25 Texas Supp., 385, a judgment was held void as upon no service where the defendant, who was a resident of Parker County, was served in Parker County by a deputy sheriff of that county with process addressed to an officer of Dallas County. There was no authority to the sheriff of Parker to execute the process. The writ in that case was not a defective writ, but was good upon its face, and the service was held no service for the want of authority in the officer of Parker County to make it. That case is easily distinguished from this *210 case, because the citation in this authorized the service on the defendants therein, and though defective, was amendable, for citation which has been issued without the seal of the court may be amended with leave of the court by affixing the seal thereto. Cartwright v. Chabert, 3 Tex. 261. A writ of attachment may also be amended in the same respect. Whittenberg v. Lloyd,49 Tex. 640.

Plaintiffs herein had notice of the suit against them, and as they were served only with a copy of the citation, which did not contain the seal of the court, they were not aware that the service upon them was ever defective. Although the citation was issued without the seal of the court, it was defective only, and was sufficient to bring the defendants into court, and the judgment by default was not void, but was conclusive against the defendants, and could have been set aside and reversed only on appeal or writ of error, the plaintiffs having failed to show any equitable ground for a new trial. Seguin v. Maverick, supra; Harn v. Phelps, 65 Tex. 596; Vanfleet on Collateral Attack, secs. 11, 329, 353; King v. Davis, 85 Ind. 309; State v. Davis,73 Ind. 359; Cartwright v. Chabert, supra; Whittenberg v. Lloyd, supra. We do not agree with the appellants that the question is decided by the case of Crane v. Blum, 56 Tex. 325, for in that case the Supreme Court very properly recognized the fact that the question was finally adjudicated against the defendant on the writ of error to the Court of Appeals, where the defendant appeared, although he did not do so in the County Court.

We are also of the opinion that plaintiffs were concluded by the recital in the judgment that they had been duly and legally cited to appear and answer, and cannot in this proceeding dispute the validity of the citation. Treadway v. Eastburn, 57 Tex. 209 [57 Tex. 209]. It will be conclusively presumed from the finding of the court in the judgment, that the seal had been fixed as required by law.

The petition in the foreclosure suit may have been subject to general demurrer, although it seems to have been a better petition than the one so held in Wood v. City of Galveston,76 Tex. 126. But we are of the opinion that that is not the test that will be applied when a judgment is attacked as void. The judgment is the final act of the court, and where a court has jurisdiction of the subject matter, and renders a judgment, its validity will depend neither on the regularity of the process nor the sufficiency of the pleadings. When a "petition sets forth facts sufficient to challenge the attention of the court with regard to its merits, or to authorize the court to deliberate with respect thereto," it is said by the Supreme Court of Kansas to be a sufficient basis to support a judgment good upon collateral attack. Head v. Daniels, 38 Kan, 1. We do not pass upon the sufficiency of the petition on general demurrer in the case of Heffron v. Perry, for we think it clearly sufficient to support the judgment that was rendered. Vanfleet on Collateral Attack, sec. 61.

As above stated, the copy of the certificate sued on recited that the *211 owners of the land was John and Lucy Berry, but the petition contained the clear and affirmative averment that the defendants, the plaintiffs herein, were the owners of the property, and were liable for the payment of the sums mentioned; so there is nothing in the objection that the court was without authority to enter judgment against the property of John and Lucy Perry; nor that the certificate was not issued by proper authority because the citation, in giving a brief statement of the cause of action, misstated the corporate name of the city of Houston.

The facts were not sufficient to authorize the setting aside of the sale. It was shown that the property brought an inadequate price, but there was not the slightest irregularity shown in the sale, or the slightest circumstance to avoid it. Moore's knowledge, obtained after he had bought the property, but before he had complied with his bid, that the citation was defective, did not affect the sale or his right to have a deed upon payment of the amount of the bid.

It is unnecessary to notice any of the other errors assigned.

Appellees were not entitled to have the judgment obtained by them in the court below; it will therefore be reversed, and judgment will be here rendered in favor of the appellants; that appellees, as plaintiffs below, take nothing by their suit and pay all costs, and in favor of the defendant W.J. Moore for the recovery of said property.

Reversed.

ON MOTION FOR REHEARING.





Addendum

Upon consideration of this case we see no cause to change our views with regard to the questions which we held entitled the appellants to a reversal of the judgment, but have concluded that there are sufficient allegations in the petition, supported by enough evidence, to entitle the plaintiffs to have the cause remanded, so that they may have the sale set aside, if they can, since it appears that the court below rendered judgment in favor of plaintiffs on other grounds, for which reason the issue with regard to the sheriff's sale may not have been developed as fully as perhaps might have been done. The petition in this respect is deficient, but it shows that the lien was foreclosed on four several lots of land worth $4000, and contains allegations that one-half of the lot, on which no improvements were, could have been sold, and would have brought more than the judgment against the lots and all costs. Plaintiffs averred that they had tendered the money paid on the bid back to the purchaser, submitted themselves to the court, and asked that the sale be set aside. There was evidence that the four lots were worth about $600 each, and the improvements thereon were worth $1500 or $1600. There was a lien thereon for $900. The amount of the bid was $375. While it does not so appear clearly, yet the evidence warrants the conclusion that the improvements on the lots did not cover all of them, and that one or more of them could have *212 been sold separately. This fact was overlooked by the court when the case was decided. The statute regulating execution sales provides that if real property situated in any town or city, taken in execution, consists of several lots, each shall be offered by the sheriff for sale separately, if susceptible of a separate sale by reason of the character of improvements thereon. Revised Statutes (1879), art. 2305. An order of sale is an execution. Article 2281. While some of the articles under the title, "Execution," will not apply to an order of sale, yet the article under consideration and a number of others do. From the evidence that it was the duty of the sheriff to have sold the property in accordance with the article of the Revised Statutes above cited, by offering for sale one lot at a time, we have concluded, therefore, that the motion for a rehearing should be granted so far as to remand the cause for another trial.

Motion granted. Reversed and remanded.