Hudson v. Nowell & Son

CONNER, O. J. The proceedings now before us were set in motion by appellant,.-W, W. Hudson, on August 11, 1927, by filing a pleading in the justice court of precinct No. 1, Cooke county, styled “Motion of Defendant to Set Aside Alias Execution and the Sale of Realty Thereunder.” It appears from the record that on April 4, 1927, the court in which the motion was filed entered a judgment against W. W. Hudson in favor of “No-well & Son,” as plaintiffs, for the sum of $165.53,. together with interest and $7.25 costs; that by virtue of said judgment an alias execution had issued on the 8th day of July, 1927, and levied upon certain property of Hudson, which was sold to C. J. and D. T. Grammer, to whom the officer executing the execution made deed, receiving therefor the sum of $210, which price was alleged to be grossly inadequate. It is urged that the judgment is void, on the ground that it is in favor of a partnership, without the joinder of the individual members thereof. The motion also attacked the alias execution as based on a void judgment, and on other grounds, which, in view of our final conclusion, we deem it unnecessary to notice and discuss. The justice of the peace, on August 10, 1927, issued a formal notice, directed to the sheriff or any constable of Cooke county, commanding him to summon Nowell & Son, being the plaintiffs in the suit styled “Nowell & Son v. W. W. Hudson,” etc., and also C. J. and D. T. Grammer, to appear before said justice at noon August 15, 1927, to answer the motion. The motion seems to be in due ‘ form. The return of the constable shows that it came to hand on the 10th day of August, 1927, and was executed on the 11th day of August, by delivering “to each of the within named Nowell & Son, by delivery to W. B. Nowell, one of the members of the firm of Nowell & Son, and C. J. and D. T. Grammer,” a copy of the notice. On the day appointed, to wit, August 15, 1927, “Nowell & Son, by W. B. Nowell,” presented a motion to dismiss the proceedings on *779 the ground that there had been no appeal taken from the original judgment against Hudson, and that more than two terms of court had passed since its rendition, and that hence the court was without jurisdiction over the subject-matter at that time. A motion in their behalf was also made by their attorney, reciting that Nowell & Son was a firm composed of W. B. and A. N. Nowell, doing business under the firm name of Nowell & Son, and prayed that the original judgment be amended to so show. O. J. and D. T. Grammer also presented a motion denying the jurisdiction of the justice court, on the ground that they were riot parties to the suit of Nowell & Son against Hudson, and had “no interest in the matter, nor in the controversy between the said Nowell & Son against W. W. Hudson.” The justice of the peace denied the motion of Nowell & Son to amend the judgment, sustained the motion of O. J. and D. T. Grammer to be dismissed, and dismissed the motion to set aside the execution sale, all on the ground that he was without jurisdiction. From the order so made, W. W. Hudson duly prosecuted an appeal to the county court of Gooke county, where substantially the same contentions appear to ha,ve been made as in the justice court, and where on, to wit, December 21, 1927, judgment was rendered against W. W. Hudson and in favor of Nowell & Son, dismissing the action, upon the ground that the court was without jurisdiction. To such order and judgment of the county court, W. W. Hudson duly excepted, and has prosecuted an appeal to this court. In addition to what we have already stated, and as preliminary to a discussion of the case, we will notice that we have no statement of facts in the record, nor any formal assignment of error. Appellant presented, however, a motion for a new trial, which must be considered as the basis of his assignments of error. There are two: First, that the court erred in dismissing C. J. and D. T. Grammer, for the reason that “said judgment and order is contrary to the law”; and, second, that the order of the court sustaining the motion of Nowell & Son to the jurisdiction of the court and in dismissing the cause should be set aside, for the reason that “said judgment and order is contrary to the law.” It is thus evident that we have before us no such specific assignment of error as requires consideration under the rules relating to that subject, and we therefore shall consider only such questions as may be considered as fundamental error apparent of record. Accordingly, defects complained of in the brief of appellant, relating to the sufficiency of the form and regularity of the time of service of appellant’s motion to set aside the judgment of the justice court appealed from, and to the irregularities in the execution, and return thereon, by virtue of which the constable sold appellant’s land to O. J. and D. T. Grammer, will not be discussed. The transcript, however, which has been duly certified to by the clerk below, contains a copy of the transcript from the justice court and of the proceedings in the county court, from which this appeal has been prosecuted. Therefrom it also appears that, at the sale of defendant’s land under the execution from the justice court, a sum in excess of the judgment in favor of Nowell & Son was received. Nothing in the record suggests that the amount so received was not paid to Nowell & Son in discharge of the judgment, and' we will so presume. Nor is there any pleading or other thing in the record to suggest that appellant was seeking to recover from the plaintiff in the judgment the value of the land, or the amount of money for which the land sold under the void execution, and no such contention appears in the brief of counsel for appellant. So that, we think, it is evident from the record that the major purpose of this suit was to cancel the constable’s deed and remove the cloud from the title of defendant’s land, created by its sale to O. J. and D. T. Grammer; the attack on the judgment, execution, and other proceedings of the justice court being merely incidental as a means to that end. Indeed, in appellant’s brief the purpose in this action is stated to be the same as in Garza v. Kenedy (Tex. Com. App.) 299 S. W. 231, which was instituted in a district court for such a purpose. Such suits, we think it entirely clear that neither the justice court nor the county court had the jurisdiction to try. If it be true, as alleged in the motion of the Grammers, that they had no interest in the controversy, it must be because they had either abandoned all claim • of right or title under the constable’s deed to them, which seems improbable, in view of the amount they paid therefor, or because they had assigned whatever title or color of title they may have so acquired. The trial court sustained the motion of the Grammers to be dismissed, on the ground that they were without interest, and there is no evidence before us relating to the subject. Of course, whoeyer, if any one, is claiming or asserting title under the said constable’s deed, would be a necessary party in a suit to remove the cloud from the title, on the ground that the judgment upon which thé execution was based is a nullity. We venture to also add that, in the case of Amarillo Com. Co. v. C., R. I. & G. Ry. Co. (Tex. Civ. App.) 140 S. W. 377, it was held that a suit before a justice of the peace, brought by a partnership in the partnership name, might be corrected by amendment, contrary to one of the rulings made in the court below. We will not • discuss or determine those questions, however, in view of our conclusion that the object of the suit was to cancel the deed under the *780 execution from the justice court, rather than an effort to set aside or correct the judgment with a different end in view. It follows, we think, from the mere statements we have made, that while a partnership as such has no legal entity, and that a judgment in such name without the joinder of the individual persons constituting the partnership may be void, and may he attacked either directly or collaterally, yet where, as here, the invalidity of the judgment is only incidental, and important in obtaining some other relief, the attack must be made in a court having the power to grant the ultimate relief sought. It is true, as urged in behalf of appellant, that the eases of Campbell v. Richards (Tex. Civ. App.) 233 S. W. 532, and others, approve the method of setting aside an execution sale and deed to a purchaser not a party to the judgment directing the execution on motion. But in all of such cases the motion was prosecuted in a district court ¡vested with power to remove clouds upon title to land. No such power has been conferred upon justice courts, and we do not think such power is to be implied under the rule giving a liberal construction to the proceedings therein. We do not wish to be understood as holding that a justice court is without power, on motion seasonably presented, to correct informalities and irregularities in its judgments and executions. What we do hold is that such a power does not extend to the relief sought in this case. The judgment below; will accordingly be affirmed.