56 S.W. 376 | Tex. App. | 1900
This is a suit instituted by appellee to recover of appellant certain land in the city of Laredo, known as lot No. 7 in block 63. The cause was tried by the court and judgment rendered for appellee.
There is no statement of facts, but it appears from the findings of fact of the trial judge that appellee, in May, 1889, was indebted to appellant in the sum of $26.14 for taxes on lot No. 6 in the same block as the land sued for, which lot No. 6 had been conveyed by appellee to appellant by warranty deed. On May 11, 1899, appellant instituted suit against appellee in the Justice Court of precinct number 3, in Webb County. Appellee at that time was a resident of Harris County, and a citation was issued to that county which was duly served upon appellee *476 on May 17, 1899. Appellee failed to appear at the term to which he had been cited, and judgment by default was rendered against him, and the lot in controversy was sold under execution to satisfy the judgment so rendered, and was purchased by appellant for $65, the full market value of the lot being $150. A few hours after the sale Cohen tendered to Valdez the amount of the judgment and costs, which he refused. The number of the case on the docket was 39, and there is at the top of the citation, isolated from the style of the case, the number 36, which it may be presumed is intended to represent the number of the case.
Appellee sought in his petition to set aside the sale made under execution on the grounds that the judgment was void because the Justice Court had no jurisdiction over a party not living in the county in which the suit was instituted, and because the number of the cause as given in the citation was 36, while that on the docket was 39. It was also sought to set aside the sale because of inadequacy of price, and because appellee had, a short time after the sale, made a tender to appellant of the amount of the judgment and costs.
It was held by the court "that Cohen was not bound to appear and plead his privilege to be sued in the county of his residence. The citation showing on its face that he was a resident of Harris County, the Justice Court of Webb County did not acquire jurisdiction by reason of his failure to answer, and there existing no other fact to give the court jurisdiction, I am of opinion that the judgment of the Justice Court is void, and that defendant has no title to the lot in controversy by virtue of the sheriff's deed thereto, and that plaintiff is entitled to recover."
The ruling of the court quoted is in conflict with the decisions of the Supreme Court in several instances. Morris v. Runnels,
The Supreme Court said in Masterson v. Ashcom, above cited: "There is a marked distinction between the question of mere personal privilege to be sued in the precinct or county of residence, and which privilege may be expressly or impliedly waived, and that of jurisdiction proper, which can not be conferred, even by express consent. The Justice Court had jurisdiction over the subject matter, and if Ashcom was served with process, this would have given the court jurisdiction over the person also, even though the suit had been irregularly brought in a precinct or county other than that of his residence, if he failed to appear and plead in abatement his privilege to be sued elsewhere." There can be no doubt that if appellee had appeared in the Justice Court, and had not pleaded his privilege to be sued in the county of his residence, the justice of the peace could have rendered a valid judgment against him, and it follows that a failure to appear was a failure to claim his privilege and was a virtual waiver of the same, and a judgment by default against him was not void.
It was held by the court that the variance between the number in the citation and that on the docket was immaterial and did not render the *477
judgment void. This, by a cross-assignment, is presented as error by appellee, and the case of Durham v. Betterton,
The court properly held that if there was any inadequacy in the price paid for the land in the execution sale, it did not render it void.
There is no merit in the contention that the sale should be set aside because appellant, after he had bought the land, refused to give it up to appellee. It was as much his property a few hours after the sale as it was a few years thereafter, and he could not be compelled to part with it at a price fixed by appellee.
The judgment of the District Court is reversed, and judgment here rendered that appellee recover nothing by his suit, that appellant be quieted in his title, and recover of appellee all costs of this suit.
Reversed and rendered.
It is urged that the enforcement of such a rule would entail great hardship and expense on persons sued out of their counties. This may be true, but it is a matter to be addressed to the legislative and not to the judicial branch of the government. The hardship would not, however, be any greater in justice courts than in district courts. The language used by the Supreme Court in the case of Masterson v. Ashcom,
It was in proof that the property was of the value of $150, and sold at execution for $65, and that a few hours after the sale appellee offered to pay appellant the amount he had paid for the land. This appellant refused to accept unless appellee would also pay him $6.50, being the amount of his attorney's fee. We still do not think appellant was compelled to accept the sum tendered by appellee.
The motion for rehearing is overruled.
Overruled.
Writ of error refused. *479