McCarthy v. Burtis , 3 Tex. Civ. App. 439 ( 1893 )

This is an ordinary action of trespass to try title, instituted by appellee, Burtis, against appellant McCarthy. The latter impleaded on his warranty Joseph Harrell, who is now coappellant. Appellee recovered the land in the District Court, and McCarthy obtained judgment against Harrell on his warranty.

1. There was no error in the ruling of the court sustaining appellee's exceptions to that part of appellant Harrell's answer wherein he sought a recovery against appellee for an alleged debt. This claim was in nowise connected with or incidental to the subject matter of this suit; and the mere fact of appellee being a nonresident of the State affords no sufficient reason for departing from the well settled rules which will not allow Harrell to litigate his claim of debt in this case. It is not alleged that appellee is insolvent, or that there is any danger of Harrell losing his debt if his claim is not adjudicated in this suit; and the courts of the State of New York, in which appellee resides, are open to Harrell, and we must presume that they will, if applied to, afford him all the redress he may be entitled to. Besides, by an attachment suit, which is a proceeding in rem, he can sue appellee in the courts of this State and subject whatever interest he may have in the land in controversy to the payment of any just debt, certain in amount, that he may have against him.

2. It was shown that the land in question was granted and patented by the State to appellee. To defeat his right to it, appellants offered in evidence a certified copy of a judgment rendered by the District Court of Atascosa County in favor of appellant Joseph Harrell against appellee for $1317.40, on the 15th day of October, 1875; regular execution sale of this land under an execution issued on said judgment; deed from the purchaser at said sale to Harrell, and from the latter to appellant McCarthy. Appellee attacked said judgment, claiming that it was void, because there was no valid service of citation on him; the citation being served, as he contends, only by publication. To sustain this contention, appellee tendered in evidence alleged certified copies of the following papers in said cause, viz.:

The plaintiff's original petition, in which it is alleged that the defendant therein, N.W. Burtis, is a nonresident of the State of Texas, and prays that he be cited by publication; affidavit made by the attorney of record for Harrell, stating that said defendant is a nonresident of the State; citation issued by the clerk of said court, directing the sheriff of Atascosa County to summon said defendant by publication; the sheriff's return showing service by publication; the affidavit of E. Johnson showing that said citation had been published for four successive weeks in the Western Stock Journal.

These papers appear in the order above stated, and immediately after them is the following certificate:

"State of Texas, County of Atascosa. — I, A.G. Martin, clerk of the District Court in and for said county and State, do hereby certify, that the foregoing nine pages, including this page, contain a true and correct copy of the petition and affidavit of publisher in case number 217, in the District Court of said county, wherein Joseph Harrell is plaintiff and N.W. Burtis is defendant, as the same appears of file in my office.

"Given under my hand and seal of said court, at Pleasanton, the 9th day of April, A.D. 1889.

[Seal] "A.G. MARTIN, "Clerk District Court Atascosa County, Texas."

Immediately succeeding this certificate is a copy of the judgment in said cause, and then another certificate, as follows:

"State of Texas, County of Atascosa. — I, A.G. Martin, clerk of the District Court of Atascosa County, Texas, do hereby certify, the above and foregoing ten written pages contain a true and correct copy of all papers filed and proceedings had in the above cause of Joseph Harrell v. N.W. Burtis, number 217, as shown by the records of my office, except the depositions of plaintiff and accompanying exhibits, and also executions and sheriff's return.

"Given under my hand and the seal of said court, in Pleasanton, the 24th day of May, 1890.

"A.G. MARTIN, "Clerk District Court Atascosa County."

Appellants objected to the introduction of these papers in evidence:

(1) Because the first certificate of the clerk does not include and authenticate the sheriff's return on the citation.

(2) Because there is no seal attached to the second certificate.

These objections were overruled, and this ruling is assigned as error.

The second certificate is not under seal. A district clerk's certificate must be authenticated by the seal of the District Court. Rev. Stats., art. 1131. The second certificate must therefore be disregarded. It can not be treated as the official act of the clerk.

The first certificate does not embrace and authenticate the affidavit showing that the defendant was a nonresident of the State, the citation, and the sheriff's return thereon.

The objection, however, was confined to the sheriff's return, and did not include the other papers in the same condition. But it was good as far as it went, and should to that extent have been sustained and the return excluded.

There was no jury in the case, and it is contended by appellee, that if the sheriff's return and the second certificate were improperly admitted, the error was harmless, as the remainder of the transcript in said cause of Harrell v. Burtis establishes the fact that the judgment in that case was rendered solely upon service by publication.

We can not yield assent to this proposition. The application for and issuance of citation to be served by publication upon a nonresident of the State, in the absence of the sheriff's return and of information as to what else the record may contain, the judgment being silent as to notice (as in this case), does not constitute that clear and affirmative proof that the judgment was rendered upon notice by publication alone, which ought to be adduced to overcome the presumption that a domestic court of general jurisdiction, acting upon a subject matter within the ordinary scope of its power, has jurisdiction of the person against whom its judgment is rendered. Treadway v. Eastburn, 57 Tex. 211, and cases hereafter cited.

We do not concur with appellants in the assertion, that the judgment in the case of Harrell v. Burtis can not be attacked and held void in this case. As before stated, it is silent upon the subject of notice; and such being the case, if it is made to appear from the record that the defendant was a nonresident of the State, and that citation was issued and served by publication, and the record does not show an acceptance or waiver of notice, it should be held void, though this be a collateral proceeding. Taliaferro v. Butler, 77 Tex. 579; Wilkerson v. Schoonmaker, 77 Tex. 615, and cases cited; Martin v. Burns, Walker Co., 80 Tex. 676; Hardy v. Beaty,84 Tex. 562; Treadway v. Eastburn, 57 Tex. 211.

For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.