60 F. 220 | 5th Cir. | 1894
(after stating the facts.) The only question to he determined in this court is whether or not the judgment in the escheat proceeding was binding on the defendant in error, (plaintiff in the court below.) All of the assignments of error raise this question, in one form or another, and need not be recapitulated. It is contended that, as the judgment in question was rendered by a court of general jurisdiction, and contains a recital that the heirs of George W. Crowls were duly cited as required by law, by making publications, etc., the same is conclusive and binding on all parties •as to the sufficiency of the service by publication on the said heirs, and cannot he inquired into, nor attacked collaterally, in that re
“The presumptions which the law implies in support of the "judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent. When the record states the evidence, or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.”
In Settlemier v. Sullivan, 97 U. S. 444, it was contended that the recital in the entry of the default of the defendant in the case in the state court, that, “although duly served with process, he did not come, but made default,” was evidence that due service on him was made, notwithstanding the return of. the sheriff, and supplies its omission, but the court held that:
“The recital must be read in connection with that part of the record which gives the official evidence prescribed by statute. This evidence must prevail over the recital, as the latter, in the absence of an averment to the contrary, —the record being complete, — can only be considered as referring to the former.”
We further quote from the same:
“We do not question the doctrine that a court of general jurisdiction, acting within the scope of its authority, — that is, within the boundaries which the law assigns to it with respect to subjects and persons, — is presumed to act rightly, and to have jurisdiction to render the judgment it pronounces, until the contrary appears. But this presumption can only arise with respect to jurisdictional facts, concerning-which the record is silent. It cannot be indulged when the evidence respecting the facts is stated, or aver-ments respecting them are made. If the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. But, if the record give the evidence or make an averment with respect to a jurisdictional fact, it will be taken to- speak the truth, and the whole truth, in that regard; and no presumption will be allowed that other and different evidence was produced, or that the fact was otherwise than as averred. ‘If, for example,’ to give an illustration from the case of Galpin v. Page, 18 Wall. 850, ‘it appears from the return of the officer or the proof of service contained in the record that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appears, in like manner, that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also.’ ”
In Cheely v. Clayton, 110 U. S. 701-708, 4 Sup. Ct. 328, it is said:
“The notice and return appearing of record in the proceedings for divorce control the general recital in the decree that due service had been made upon the defendant therein.”
The whole subject is reviewed by the supreme court in Guaranty Trust, etc., Co. v. Green Cove, etc., R. Co., 139 U. S. 147-148, 11 Sup. Ct. 512, and Galpin v. Page, Settlemier v. Sullivan, and Cheely v. Clayton, supra, are approved. These authorities control the question in this court.
The judgment of the district court of Fisher county, state of Texas, in the escheat proceeding entitled “State of Texas v. The Heirs of Geo. W. Crowls,” was rendered in a suit which was com
“Title 36. Esclieat.
“Article 1770. Estates shall Escheat, When. If any person die seized of any real or possessed of any personal estate without any devise thereof, and having no heirs, or where the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, such estate shall escheat to and vest in the state; provided, that where no will is recorded or probated in the county where such property is situated within seven years after the death of the owner it shall ho prima facie evidence that there was no will, and where no lawful claim is assorted to, or lawful acts of ownership exercised in such property for the period of seven years, and this has been proved to the satisfaction of the court, it shall be (loomed prima facie evidence of the death of the owner and of the failure of heirs, and the court trying the cause may, if such evidence is not rebutted, find therefrom in favor of the state.
“Article 1771. Petition, for Escheat Filed by District or County Attorney, When. When the district or county attorney shall be informed or have reason to believe that an executor under the will of any person who has died without heirs and without having devised his estate, has not accepted the trust, and that no administrator with the will annexed has been appointed; or where such attorney shall discover that no letters of administration on the estate of an intestate who has died without heirs have been granted; or where such attorney finds any estate real or personal, in the condition specified in tlie next preceding article (1770) he shall lile a petition in behalf of the state in the district court of the county where such property or any part thereof lies, which petition shall set forth a description of ihe estate, the name of the person lawfully seized or possessed of the same, the names of the tenants or persons in actual possession, if any, and the names of the persons claiming the estate, if any such are known 1o claim, and the facts or circumstances in consequence of which such estate is claimed to have es-cheated, praying for a writ of possession for the same in behalf of the state.
“Article 1772. Citation Issued as in Other Cases. The clerk of the court shall issue citation as in other civil causes for such of the defendants as shall he alleged in the petition to hold possession of or claim such estate, requiring them to appear and answer at the next, term of court.
“Article 1773. Citation for Publication Issued, When, etc. The clerk shall also issue a citation, setting forth briefly the contents of the petition for all persons interested in the estate to appear and answer at the next term of court, which citation shall be published as required in other civil suits.”
Tbe last article quoted provides for publication of citation for all persons interested in 'the estate, “as required in other civil suits.” When the proceeding to escheat the estate of Orowls was instituted, two articles of the Eevised Statutes of Texas prescribed the manner in which citation shall he published in civil suits, as follows:
“Art. 1235. Citation for Non-Resident Defendants, etc. Where any party to the suit, his agent or attorney, shall make oath at the time of instituting the suit, or at any time during its progress, that the party defendant is a non-resident of the state, or that lie is absent from the slate, or 1liat he is a transient person, or that his residence is unknown to the affiant, the clerk shall issue a citation for the defendant, addressed to the sheriff or any constable of the county in which the suit is pending. Such citation shall contain a brief statement of the cause of action, and shall command the officer to summon the defendant by making publication of the citation in some newspaper published in his county, if there he a newspaper published therein, but if not, then in any newspaper published in the judicial district where the suit is pending. But if there be no newspaper published in such judi*226 cial district then it shall be published in the nearest district to the district where the suit is pending. Such citation shall be published once in each week for four successive weeks previous to the return day thereof.
“Art. 1236. For Unknown Heirs. Where any property of any kind in this state may have been granted or may have accrued to the hems, as such, of any deceased person, any party having a claim against them relative to such property, if their names be unknown to him, may bring his action against them, their heirs or legal representatives, describing them as the heirs of such ancestor, naming him; and if the plaintiff, his agent or attorney, shall, at the time of instituting the suit or any time during its progress, make oath that the names of such heirs are unknown to the affiant, the clerk shall issue a citation for such heirs addressed to the sheriff or any constable of the county in which the suit is pending. Such citation shall contain a brief statement of the cause of action and shah command the sheriff or constable to summon the defendant by making publication of the citation in some newspaper of his county, if there be a newspaper published therein, but if not, then in the nearest county where a newspaper is published, once in each week for eight successive weeks previous to the return day of such citation.” Sayles’ St. Tex. pp. 418, 419.
A comparison of these two articles shows a marked difference between them. Article 1235 prescribes the method for serving a defendant whose name is known; for his name must be known before an oath can be made that he is a nonresident of the- state, or that he is absent from the state, or that he is a transient person, or that his residence is unknown to affiant. Article 1236 prescribes a method for serving unknown heirs, and is applicable when property is sought to be affected which may have been granted or may have accrued to the heirs, as such, of any deceased person, and their names are unknown to the plaintiff. In such event, they may be sued as the heirs of such deceased ancestor. Under article 1235, the citation must be published for four weeks, and, under article 1236, for eight weeks; the reason for the distinction being that where parties are known and named the publication is much more likely to attract and call attention than where the parties are unknown, unnamed, and can only be indefinitely described as the heirs of so and so, deceased. In the present case, the citation is directed to the sheriff or any constable of Fisher county, and commands him to summon all persons interested in the estate of George W. Growls, deceased. It recites that plaintiff has filed a suit against certain persons by name, and the heirs of George W. Growls, deceased. It further recites, as alleged in the petition, that the said Growls has departed this life, and left no heirs, or any one having a.legal claim to said lands. Article 1770 of the escheat act, supra, shows clearly •that the ground for the escheat proceeding is that the last owner died without issue, etc.; that this proceeding is brought to judicially determine that fact; and that the heirs of such deceased owner must be cited, and given an opportunity to contest. It would seem, in the case made, that the article 1235 could not apply, because the names of the heirs are unknown. In fact, the entire proceeding seems to be based on the averment that no such persons exist. And it is to be noted that the service on the heirs of Growls by publication was not obtained on the ground that they were nonresidents of the state, or absent from the state, or transient persons, or that their residence was unknown. Article 1236 prescribes the method
It is argued on behalf of the plaintiff in error that because article' 1773, prior to the amendment of 1885, provided that the order of court requiring “all persons interested in the estate to appear and show cause,” etc., should be published as required by article 3230, and, when said article was amended, prevision was made that a citation shall issue “for all persons interested in the estate to appear and answer at the next term of court, which citation shall he published as required in other civil suits,” a legislative intention is to bo infeiTed that the publication under the existing law shall not he under article 1236, but may be for the shorter term provided in article 3285. If the amendments of the escheat law had been restricted solely to article 3773, and with reference to the time of publication of notice summoning all persons interested in the estate to be escheated, there would he strong reason to hold that the legislative intention was to permit publication under article 1285. An examination, however, of the amendments, as made, shows that the pxirpose of the amendments "was to substitute citations as in other civil suits for scire facias and orders of court as to publications, and to enable the clerkto issue the citations in vacation without an order of court. In making these changes, it was natural that the prevision with regard to publication of the citations should be (like the citations) “as required in other civil suits;” but from this change of language a legislative intent cannot be inferred that article 1236 was to ho ignored in escheat cases, when unknown heirs were to he cited, because, if for no other reason, article 1236 provides (he method “required in other civil suits” for service of citatiou by publication on unknown heirs, when impleaded in reference to the property of their ancestor.
The trial judge ruled that in proceedings under the escheat law in question, and construing article 1773, supra, the publication of the citation, in order to bar unknown heirs, should be made under article 1236, as “required in other civil suits,” to reach that class of defendants. In our opinion this ruling was correct.
And we are inclined to the opinion that the ruling that the judgment in the case of State of Texas v. The Heirs of Geo. W. Growls was no bar to the defendants in the court below can be sus tamed upon another ground. Article 1773 of the act provides that “the clerk shall issue a citation setting forth briefly the contents of the petition for all pei'sons interested in the estate to appear and answer,” etc. By the term “estate” is meant the estate sought to he escheated. Articles 1770 and 1771, supra, show clearly that an