Bowers v. Chaney

Wheeler, J. It is not perceived that there was any necessity to make Lewis a party to the suit, or that the plaintiff can have sustained any injury by the refusal of the Court to permit him to be made a party. He had no interest to be affected by the litigation, nor was any judgment or recovery sought against, or in any manner to bind him. The material question in the case is whether the judgment in the attachment suit was void for the want of jurisdiction or power in the Court to render it, or was only erroneous. If the former, it can afford no protection to the purchaser under it; but if the latter, it cannot be impeached collaterally in this action, and the purchaser of the property sold under it, acquired a good title. [368] The cases cited by the appellant’s counsel to establish the nullity of the judgment were cases in which the question was, not whether the judgment was null, but only whether it was erroneous. They were cases determined upon appeal or writ of error from the judgment, and not where it was brought in question in a collateral action. (Fowler v. Poor, Dallam 401; Wooster v. McGee, 1 Tex. R. 17 ; Cordova v. Priestly, 4 Id. 250.) Under these decisions the judgment in question must have been adjudged erroneous and would have been reversed on appeal; but they are not authority for treating it as null, when brought in question in a collateral action. No such question was before the Court in those cases ; and the observations of the Court are to be understood in reference to the question under consideration. It was irregular and erroneous to file the affidavit and bond, and issue the writ before the filing of the petition. But we are of opinion that upon the filing of the petition, the Court was not without jurisdiction and power to hear and determine the case, and consequently that its judgment was not, by reason of the irregularity, void. There was a case in Court upon which the jurisdiction attached. It is objected that there was not personal service, but service only of the attachment. But there was no law at the time which required personal service in cases of attachment. The case most nearly in point to the present, decided by this Court, is Sutherland v. De Leon, (1 Tex. R., 250.) There was no personal service ; judgment was rendered, and execution was levied on the land, as in the present case ; and the title of the purchaser was sustained. It was said that prior to the Act of 1841, the proceeding by attachment was strictly in rem ; personal service or notice by publication was unnecessary ; the judgment, although without effect inpersonam, had effect and was binding upon the property attached ; the affidavit was all that was necessary to authorize the issuing of the attachment; upon the return of the levy the jurisdiction of the Court over the property attached, and the judgment, [369] until reversed, bound the property, and. could not be questioned in a collateral action. (Ibid. 301, 307, 308, et seq.) That was an attachment issued under the Act of the 18th of December, 1837 ; but as respects the principles of the decision to which we have adverted, the case did not differ materially from the present, which was under the Act of the 28th of January, 1839. The only point of difference as respects the law applicable to the cases, which requires especial notice, is that prior to the rendition of judgment in the present case, the Act of the 4th of February, 1841, providing for the publication of notice was in force. (Acts of 5th Congress, p. 187.) The Act, however, did not provide for the issuance of any process from the Court to authorize the publication of notice; but required the Clerk, or the plaintiff or his attorney, to cause notice of the proceeding to be published in some newspaper (Sec. 2.) As no process was provided, there could be no return showing the fact of publication, but it must be proved, as any other matter of fact in the case, by the production of the notice or the testimony of a witness to the fact of publication. The evidence was not required to be taken down or noted in the proceedings. And in the absence of anything appearing to the con' trary, the presumption in favor of the judgment must be that the Court did its duty, and required evidence of the notice having been published, before proceeding to render the judgment. We therefore conclude that the judgment, though erroneous, was not to be deemed null, as if rendered by a Court without -competent authority, or power to proceed to judgment in the case ; but when brought in question collaterally it was to be deemed valid as a judgment in rem ; and consequently that the Court did not err in holding the title acquired by the purchaser of the property attached,-valid and effectual to defeat the plaintiff’s action. The judgment is therefore affirmed. Judgment affirmed.