Hambel & Heasty v. Davis ( 1896 )

This application must be refused, because the judgment under which the defendants in error claim title to the land was valid, and by the sale of the land thereunder the title passed from James Kelly to the purchasers at that sale, under whom the defendants in error claim.

It is claimed by the plaintiffs in error that the judgment of the justice of the peace is void, because: (1) The citation for publication, issued in the cause of Levyson v. James Kelly, and in which cause the judgment was rendered under which the land was sold, was issued without authority of law; that is, at that time the law authorizing service of citation by publication in the justice court had been repealed. (2) Because the defendant, at the time the suit was filed and when the judgment was rendered, was a non-resident of the State of Texas; and (3) because the citation did not name the place at which the defendant was notified to appear.

The law of 1870, which authorized service by publication in suits before justices of the peace, was not repealed by the repeal of the law which empowered the governor to select and designate the official paper for that district.

This is a collateral attack upon the judgment of the justice of the peace under which the land was sold, and the burden was upon the plaintiff below to show that the justice court had no jurisdiction of the defendant in the case of Levyson v. James Kelly. The fact that Kelly claimed to be a resident of Kansas while he was in Caldwell County, does not prove that he was not a transient person within the limits of the State of Texas and within the meaning and intent of our statute, subject to be so cited. If his place of permanent residence was in another State, but he was at the time within this State, and a transient person, he might be cited by publication. (Traylor v. Lide, 7 S.W. Rep., 58.) From the facts agreed upon, it appears that Kelly was engaged in business in this State and remained at one place — in Caldwell County — for several months. It does not appear that he left the State before the suit was filed and service perfected. In fact, he is not shown to have been outside of the State for eleven years thereafter. Under this state of facts, the court might have had jurisdiction over him as a transient person within the limits of the State, although his permanent residence might have been in Kansas, and every presumption will be indulged in favor of the validity of the judgment of the court.

Plaintiffs in error contend that the citation for publication in the case of Levyson against Kelly was void because it did not designate the place at which the defendant was cited to appear. The citation was directed to the sheriff or any constable of Caldwell County. It directed that the citation be published in the News Echo, a paper published in Caldwell County, and that the defendant be cited "to appear at my office in the town of Lockhart," and was signed "E.H. Rogan, J. P. C. Co." The court knows judicially that Lockhart was the county-seat of Caldwell County. (Carson v. Dalton, 59 Tex. 500 [59 Tex. 500].) The letters, "J. P. C. Co.," taken in connection with the address of the writ to the officers of Caldwell County, is sufficient to show that Rogan was a justice of the peace of that county. (McDonald v. Morgan, 27 Tex. 506.) It appeared from the citation that the defendant was thereby notified to appear in Lockhart, the county-seat of Caldwell County, at the office of E.H. Rogan, justice of the peace. Although Caldwell County was not written after Lockhart, yet it must be known to all persons when the county-seat is named that it is located in the particular county of which it is the seat of justice. This citation was sufficient upon which to enter the judgment.

The service of the writ was not sufficient upon which to enter judgment at the July term of the justice court, 1874, but was sufficient upon which to enter such judgment at the next succeeding term. (Hill v. Baylor, 23 Tex. 263; Wilson v. Green, 1 White W. C. C., sec. 98.)

It is not necessary for us to determine in this case whether the presumption would be indulged (in the absence of proof and in the absence of a recital of service in the judgment rendered) that another citation had been issued and served either by publication or by personal service; that question is not passed upon by this court. It is sufficient that the judgment is valid upon the service shown by the record. The application for writ of error is therefore refused.

Refused.