Lawler's Heirs v. White , 27 Tex. 250 ( 1863 )

Bell, J.

We are of opinion that there is no error in the judgment of the court below, and that the same ought to be affirmed,

. The only question which we deem it necessary to notice arises upon the bill of exceptions to the exclusion of the testimony of the witness Gray, offered by the plaintiffs below. The record of the District Court of Gonzales county, in the case of J. D. Clements, administrator of the estate of Thomas B. Miller, v. Joseph P. Lawler, recites that notice of the suit had been served upon Lawler by publication, in compliance with a former order of court. The testimony of the witness Gray was offered to disprove the record, and to show “that, in fact, no citation was ever served on said Lawler, by publication or otherwise, as recited in the decree.” There has been much discussion, and some contrariety of decision, as to the conclusiveness of the record of a domestic judgment, and as to how far such a judgment may be impeached for want of sufficient matter of record to show that the court by which it was pronounced, had acquired jurisdiction over the cause and the parties. The cases which we have examined, in which it has been held that the question of service or notice was open to the parties, are cases in which the record was silent on the subject, or disclosed the fact that the court which rendered the judgment in question did not have jurisdiction of the parties. The weight of authority seems to establish the proposition, that even where the record is silent on the subject of notice, the judgment of a court of general jurisdiction will support itself, and can not be collaterally impeached or called in question, because of any alleged want of jurisdiction over the parties to the decree. In Hare & Wallace’s Notes to the cases of Mills v. Duryee, and McElmoyle v. Cohen, this subject is fully discussed. It is said that the attempt, even by a court of general jurisdiction, to exercise a power which it does not possess, will be fatal to the validity of its decree; “but,” it is said, “ this is obviously a very different ease from that which arises where a proceeding is within the general jurisdiction of a tribunal, although the proper steps have not been taken by service of process, or otherwise, to make that jurisdiction attach in the particular instance. Here, as it would seem, the presumption that the proper course has been adopted is so absolutely conclusive, that it can not be controverted by evidence, unless in the instance of suits brought in one State upon the judgments of another, where an exception has been introduced by necessity rather than reason.”And after a further view of the authorities, the annotators conclude: “These authorities appear fully sufficient to establish the salutary principle, that what is done by a judicial tribunal possesing general powers, and within the scope of those powers, must be deemed to have, within itself, the force necessary for its own support ; and can not be called in question, except by the regular modes of "examination which are provided for the investigation of real or imputed error in judicial proceedings.” (American Leading Cases, vol. 2, pp. 736, 737.) In the present case, it may be said that the record of the suit in the District Court of Gonzales county disclosed the fact, that the court had no jurisdiction over the person of Lawler, inasmuch as the petition alleged that he was beyond the limits of the Republic of Texas. To this it is to be replied, that this court has held, in the case of Grassmeyer v. Bee-son, that jurisdiction could be made to attach in such a case by publication of notice to the absentee, to appear and answer the Writ. This being so, and the record containing the recital that the order of publication was duly executed, we are of opinion that the verity of the decree could not be impeached by parol. This is the Only question argued by the counsel for the- plaintiffs in error, and there seems to- be' no- necessity for considering other questions which are discussed by the counsel for the defendants.

The judgment of the court below is affirmed.

Judgment affirmed.