Floyd v. Watkins , 34 Tex. Civ. App. 3 ( 1904 )

If the judgment of the District Court under which appellee claims is not absolutely void, the judgment of affirmance in this case is correct. Appellants attack that judgment upon the ground that the District Court had no jurisdiction. This is a collateral attack, and in order to sustain it, it must be made to appear from the record of the case in which the judgment was rendered, or otherwise, that the court was without jurisdiction. Ablowich v. Bank, 95 Tex. 429.

The rule is that "when the judgment or decree of a domestic court of general jurisdiction is collaterally attacked it must be deemed valid, unless it appears that no facts could have been shown which could render it so." Martin v. Robinson, 67 Tex. 368 [67 Tex. 368]; Endel v. Norris, 93 Tex. 540.

The general rule is that when a debtor dies, creditors must enforce their claims in the probate court, and can not, within the time allowed by law for the issuance of letters of administration, maintain an action against the heirs or devisees. But this is not an inflexible rule, and a creditor without entering the probate court may sue and have property of the estate applied to the payment of his debt, by showing that no other debts exist, and that there is no necessity for an administration. Patterson v. Allen, 50 Tex. 23; Solomon v. Skinner, 82 Tex. 345. This exception to the general rule existing, when a judgment is obtained against heirs or devisees and such judgment is attacked collaterally, the rule referred to in Martin v. Robinson, supra, applies. Testing the judgment assailed in this case by that rule, and considering the facts disclosed by the present record, we think it must be held that the judgment was not void. While the suit in that case was commenced and the judgment rendered before the expiration of the time allowed for the issuance of letters of administration, and while proceedings had been instituted in the probate court and the will established and an executor appointed, the latter had failed to qualify, and there was no administration upon the estate in the sense that there was a representative of the estate to whom the claim could have been presented for allowance. Nor does the record show that the existence of other claims against the estate or the rights of other persons rendered administration necessary. The non-existence of such claims and rights could have been alleged and proved in the foreclosure suit which resulted in the judgment here assailed. Averment and proof of such facts would have taken the case out of the general rule and brought it within the exception conferring jurisdiction on the district court.

In the trial of the case now on appeal, in which the judgment referred to is collaterally assailed by the appellants, it devolved upon them to negative the existence of facts authorizing the suit to be brought in the district court. This they failed to do; but, on the other hand, appellee submitted testimony tending to show the existence of such facts. It is true that appellants put in evidence the original petition in the foreclosure suit, and that pleading disclosed on its face the existence of the probate proceedings, the appointment of an executor and his failure to qualify, and did not allege that no other debts existed against Mrs. Floyd's estate. But it was not shown that the original petition was the only pleading filed by the plaintiff in that case. An amended petition may have been filed, setting up all the facts necessary to authorize the suit in the district court; and, in the absence of a showing to the contrary, it will be presumed in this collateral proceeding that such was the case.

The motion for rehearing has been carefully considered, and the conclusion reached that it should be overruled, and it is so ordered.

Overruled.