Opinion

Loper v. Meshaw Lumber Co.

  • 104 S.W.2d 597
  • 1937 Tex. App. LEXIS 880
Court
Court of Appeals of Texas
Filed
Mar 19, 1937
Status
Published
On the bench
Leslie
Cited by
14 cases
Authority
More cited than 12.3%

holding that, because heir’s suit was statutory trespass to try title suit, pleadings containing allegations in accordance with statute were sufficient and pleading that no administration was pending or necessary was not required

How later courts described this case

  • holding that, because heir’s suit was statutory trespass to try title suit, pleadings containing allegations in accordance with statute were sufficient and pleading that no administration was pending or necessary was not required
  • stating judgment in tax suit is not void because all parties owning interest are not made parties; instead, judgment foreclosing tax lien is good as against parties joined in suit, but parties not joined are not bound by judgment

Written by the judges who cited it.

The opinion

On Rehearing.

We have given the appellant’s motion for rehearing careful consideration, and we overrule the same with an additional statement and authority in support of our holding that the tax judgment is not void or subject to collateral attack. We refer to “Contentions 1 and 2” under the “Group of Assignments Complaining of the Ruling of the Trial Court in Permitting the Introduction of the Tax Title Acquired by B. B. Perkins,” etc.

In overruling said contentions, we cited numerous authorities supporting our conclusions. To these we desire to add the case of State Mortgage Corp. v. Affleck (Tex.Com.App.) 51 S.W. (2d) 274, 276 , (approved by Supreme Court). This authority has just come to our attention, and it is so clearly in point sustaining our original views in the respect under consideration that we desire to quote therefrom the following:

“* * * but this is not a direct attack upon said original judgment, and, since that judgment recites that the defendants had been duly cited by publica: tion, it must be presumed, as a matter of law, that the defendants were duly cited. The recital in the judgment, which was the last act of the court in that case, reciting that ‘the defendants, although duly cited by publication, came not, but wholly made default,’ imports, in collateral proceedings, absolute verity. Murchison v. White, 54 Tex. [78], 82; Treadway v. Eastburn, 57 Tex. 209 ; Heck v. Martin, 75 Tex. [469], 472, 13 S.W. 51 , 16 Am.St.Rep. 915 ; Williams v. Haynes, 77 Tex. [283], 285, 13 S.W. 1029 , 19 Am.St.Rep. 752 ; Martin v. Burns, 80 Tex. [676], 679; 16 S.W. 1072 ; Crawford v. McDonald, 88 Tex. 626 , 33 S.W. 325 ; Levy v. Roper, 113 Tex. 356 , 256 S.W. 251 ; Harrison v. Orr (Tex.Com.App.) 296 S.W. 871 .” (Italics ours.)

As pointed out, we are in the instant case considering the question of collateral attack and the recitals in the judgment are general as to service by publication.

Further, in publishing citation in the tax suits, article 7342 provides that the same “be published in some newspaper published in said county one time a week for three consecutive weeks.” There is no merit in the point that three weeks’ publication was insufficient. In addition, we may say that a re-examination of the record discloses that the service was sufficient.

The motion is overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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