Burditt v. Howth

Moore, Associate Justice. -The record does not show that any citation was ever issued to or served upon either of [471] the original defendants. It is, however, insisted hy appellee that, as the judgment recited that all the defendants were duly served with process, the fact of service cannot he controverted, but must he presumed. In support of this proposition we are cited to the case of Curry v. York, 3 Tex., 357. But this ease has no application to a question such as is here presented. It merely holds thafi in the absence of a statement of facts, it will be presumed that the evidence was sufficient to support the verdict. It is a generally-recognized rule that, when a domestic judgment is brought collaterally in question, the recital of service of process cannot he inquired into or impeached. But if such a doctrine has ever been recognized or held applicable by this court when the case itself is brought up hy error or appeal for correction, we are not aware of it. That the court has assumed jurisdiction of the parties, when in fact it had not acquired it, may be the very error sought tó be corrected. In the case of Blossman v. Letchford, 17 Tex., 649, Hemphill, C. J., says : “ True, there is a recital in the judgment that it appeared to the court that service by publication had been perfected, as required by law; but this is insufficient, at least on error or appeal.” It is also claimed, although no service may have been had upon the original defendants, yet, by the agreement brought into the case by the amended petition, they, in effect, waived service, and made 9, voluntary appearance. But tiffs was a mere private agreement; and, though it had reference to the suit, it was not a paper in it until made so by the amended petition, filed hy the plaintiff almost five years after its execution. But if this agreement had the effect claimed for it by appellee, it would not remove the objection to the judgment ; for the defendant, M. C. Burditt, is not a party to it, and as to this one of the defendants it cannot be claimed that the record shows either service of process or a voluntary appearance. The same reply may be made to appellee’s answer to the [472] objection, that the facts alleged in the petition are not sufficient to authorize the judgment; that although the original petition will not support the judgment, it is warranted by this agreement and the averments in the amended petition. That the original petition is defective, seems to he admitted by appellee, and certainly it cannot be held otherwise without overturning many of the former decisions of this coiu’t. But as the various objections to it, as well as amended petition, will in all probability be obviated upon another trial of the case, we need not consume time in commenting upon them. The judgment is reversed and the cause remanded. Reversed and remanded.