McAnear v. Epperson , 1881 Tex. LEXIS 7 ( 1881 )

Bonner, Associate Justice.

This case has been held under advisement for several terms of the court. .

I. If it be admitted that there was no personal service on the minor defendants in suit No. 2103, in the district court of Red River county, and who are the plaintiffs in this suit, then the controlling question is this: Was the judgment rendered in that suit void for want of such service on the minor defendants, they having been represented by a guardian ad litem, so that it is subject to be collaterally impeached? There is great conflict of authority upon this question.

Much apparent conflict, however, can be reconciled if the following distinctions be kept in view, between—

1. Those cases in which such judgments have been held irregular and voidable only, and subject to be reversed on direct proceeding, as on appeal or writ of error; and those in which the judgments have been held not absolutely void for want of jurisdiction over the person of the minors so that they could be impeached collaterally.

2. Those cases pertaining to‘estates, which arose under statutes similar to our probate act of 1848, which made the administrator so far the representative of the heirs, that they were bound by proper proceedings had by or against him, for the sale of real property of the estate, in the due course of administration for the payment of debts, and those under statutes, similar to our subsequent probate act, which required, as a prerequisite to the exercise of such jurisdiction, that special statutory notice should be given.

3. Those cases decided by courts of special limited jurisdiction, where it must be affirmatively shown that the jurisdiction had attached; and those decided by courts of general jurisdiction, in which it will be presumed that the jurisdiction had attached, unless contradicted by the record.

4. Those cases which were considered so far in the nature of proceedings in rem that the property gave jurisdiction to the court; and those which were adversary in their nature and required personal service or appearance.

As said by Ch. J. Dillon in Good v. Norley, 28 Iowa, 201, “the cases on all these subjects are very numerous and do not admit of being reconciled. It would be without profit to burden an opinion with a detailed discussion of them.”

After a careful and extended examination of many cases in addition to those cited by counsel, in which the judgments in adversary proceedings, like the one now under consideration, were sought to be set aside because the minor defendants, although represented by guardians ad litem, had not been 'personally cited, we indorse this remark of Judge Hitchcock’s in Robb v. Irwin: “Much is said in the books upon the subject. But I apprehend it will be found upon examination that decrees entered under such circumstances are generally, if not universally, holden to be voidable, not void. Such, I have no doubt, is the weight of authority.” 15 Ohio, 699; Preston v. Dunn, 25 Ala., 507; Nelson v. Moon, 3 McLean’s C. C., 319; Day v. Kerr, 1 Mo., 426; Sheldon v. Newton, 3 Ohio St., 504.

In Taylor v. Rowland, 26 Tex., 293, and Taylor v. Whitfield, 33 Tex., 181, there was neither personal service nor the appointment of a guardian ad litem; and besides, the judgments in these cases were reversed on direct proceedings for this purpose.

We are of opinion, upon the weight of authority, that a failure to cite the minor defendants personally in suit No. 2103, they having been defended by a guardian ad litem, however sufficiently erroneous to have caused a reversal of the judgment against them on direct proceedings, was not such fatal defect as would render the judgment absolutely void, so that it can be successfully impeached on a collateral attack. It may be added that the district court of Bed Biver county was one of general jurisdiction and entitled to all reasonable presumptions in favor of its judgments; that the judgment recites an appearance by the minors, an adjudication by the court that they were minors, the appointment of a guardian ad litem, and his appearance and defense for them. Horner v. Doe, 1 Ind. (Carter), 130; Day v. Kerr, 7 Mo., 426.

It does not appear affirmatively by the record that the minors were not personally cited, but only negatively so by failure to show citation and service. Citation was asked, and if served, but judgment was rendered against the minors before the time given them by law to enter an appearance, as seems to have been done against their co-defendant, this would have rendered the judgment voidable only and not void. McNeil v. Hallmark, 28 Tex., 157. In Glenn v. Shelburne, 29 Tex., 125, such judgment was held erroneous and reversed on writ of error.

n. Counsel in response to the inquiry of the court whether the suit, after so long delay, can be maintained as a bill of review, on the ground of alleged fraud, answer, in effect, that the proceedings were not instituted for that purpose, further than the question of the invalid-v ity of the judgment should come incidentally under consideration.

Under Seguin v. Maverick, 24 Tex., 526, the case not being one of citation by publication, would not come within the provisions of our statute in regard to bills of review.

But "whether considered as a bill of review under the statute or as a proceeding in the nature of a bill of review in chancery, it should have been instituted, in any event, within two years after the youngest of the three minors became of age. Pasch. Dig,, arts. 4616-7, 1488-9, 1496; Murchison v. White, 54 Tex., 78.

In Hart v. Mills it was decided that sec. 43, art.. 12 (Const. 1869), which declared that the statutes of limitation of civil suits were suspended from January 28, 1861-, to March 30, 187Ó, did not apply to the statute requiring the prosecution of writs of error within two years ' from the date of the judgment. 38 Tex., 513; Story v. Runkle, 32 Tex., 398; Cunningham v. Perkins, 28 Tex., 488.

For the disposition of the question now before the court, we cannot on principle distinguish under our statute, the prosecution of a writ of error from that of a bill of review.

Sec. 14, art. 12, Const. 1869, provides that “married women, infants and insane persons shall not be barred of their rights of property by adverse possession, or law of limitation, of less than seven years from and after the removal of each and all their respective legal disability.”

Neither by its terms nor under the authority quoted can the above provision be held to apply tó bills of review.

Affirmed.

[Opinion delivered January 18, 1881.]