Martin v. Cobb , 77 Tex. 544 ( 1890 )

COLLARD, Judge.

—An inspection of the record and the judgment rendered by the justice of the peace and offered in evidence by the plaintiff will show that it was upon service by publication. The entries on the docket are as follows: “ Citation and attachment writ issued July 29,1876. Citation by publication issued July 29, 1876.''

The portion of the judgment bearing on the point is as follows:

"And now at this time comes on to be heard the above entitled cause, whereupon came the plaintiff by attorney, but the defendant came not, and jt being after the hour of 2 o'clock p. m., and the defendant after being called * * * wholly made default; and it appearing to the court that the defendant had been properly served as the law requires, and that one term of this court had passed since the return day in the citation, .and the plaintiff's cause of action having been proved by an instrument in writing, which was as follows,'' etc.

It is the settled law of this State that a personal judgment of a justice of the peace can not be collaterally attacked unless the record affirmatively shows that the court had no jurisdiction of the person of the defendant againstwhom the judgment is rendered, and where the judgment recites that the defendant “was duly served with process'' it is final and conclusive, being the last act of the court, an adjudication of the fact of legal service. Treadway v. Eastburn, 57 Texas, 213.

In this case the record of the proceedings in the Justice Court as well as the judgment itself shows that it was rendered upon service by publication. It was admitted that the defendants in the suit before the justice had never resided in Texas. It has been several times decided in this State that such service upon nonresidents gives no jurisdiction, and therefore a judgment obtained against them upon such service would be void. Scott v. Streepy, 73 Texas, 547.

A void judgment may be impeached in a collateral attack. The entries on the docket of the justice of the peace show that after the judgment a motion for a new trial was filed and overruled, and it is contended that this bound the parties by the judgment. We do not think so. The judgment was void when rendered. The filing of a motion to set it aside or the overruling of the motion could not make it better or worse. The record does not show that defendants filed the motion or that it was done by their authority. The filing of the motion does not show that the defendants were present in court when the judgment was rendered. The judgment declares that they were not, and it was taken by default. The suit was brought by attachment and land levied on in a county other than the one in which the suit was pending. Whether such a levy would confer jurisdiction or not we need not decide. If, however, it did it would only confer jurisdiction to condemn the land levied oh to the payment of the debt; it would not authorize the court to render a personal judgment against the defendants that would support a sale of other land under execution. When the land levied on was exhausted the power of the judgment was exhausted. Other property of the defendants was not affected by the judgment, and no valid execution could issue and be levied on other property. Hochstadler v. Sam, 73 Texas, 319. The court below did not err "in excluding the judgment. It follows that the sheriff’s deed and other deeds designing title from the judgment conferred no title, and were also properly excluded. Plaintiff failing to show title he could not recover, and it was proper to render judgment that he take nothing by his suit and that the defendants go hence. This was done.

Our opinion is the judgment should be affirmed.

Affirmed.

Adopted June 3, 1890.