In his original petition the appellant pleaded as the basis of his right to the custody of the child involved in this controversy that he was the father, and that on May 18, 1911, in a divorce suit between him and the mother, Mary F. Gatlin, a judgment had been rendered by the district court of the Sixty-Eighth judicial district of Dallas county, Tex., awarding him the exclusive custody. These and other facts alleged as to the manner in which the appellees thereafter secured possession of the child, if true, entitled appellant to a judgment in this suit. As a defense the appellees pleaded that on August 20, 1912, upon a motion filed by them in the same court in Dallas county, the former judgment had been modified, revoked, and annulled, and the exclusive custody of the child awarded to the appellee Mary F. Gatlin. A copy of that judgment is attached to the answer. It contains the following recitals as to service:
"On August 20, 1912, came on a motion to reform the judgment m the above styled and numbered cause, and that upon such hearing came Mary F. Gatlin, formerly Mary F. Milner, and it appearing to the court that proper issuance and service of citation was had upon the said C. W. Milner, and that the said C. W. Milner, although duly cited to appear, came not, but wholly made default; and thereupon the court, after hearing the evidence from the witnesses, finds that the allegations in defendant Mary F. Gatlin's motion to reform the judgment are true."
The court then proceeded to divest the appellant of his former right of custody upon the ground that he was not a proper person to have the care of the child.
The appellant replied fin the language quoted by Chief Justice WILLSON in his opinion. To this reply the court sustained a demurrer. It seems that the trial judge and the attorneys in the case all agreed in construing the appellant's replication as an admission that the judgment pleaded by the appellees was the decree assailed. Viewed in that light, its liability to a collateral attack may be tested by an examination of the pleadings alone.
If the facts alleged by the appellant in his supplemental petition are true that judgment was invalid, and if the state of the record in that case is what he alleges it to be, the invalidity can be shown even in a collateral proceeding like the present. While conceding that when tested by the facts alleged the judgment is void, my Associates take the position that under the record here presented it is valid as against a collateral attack. In other words, it is presumptively valid till set aside in a direct proceeding instituted for that purpose, regardless of the lack of territorial jurisdiction in the court that rendered it over either the person of the defendant in that suit or the subject-matter of the controversy. In determining the legal sufficiency of the appellant's reply, and the state of the record of the Dallas county judgment, we must assume as true all the facts alleged by the appellant, and also the following extract quoted by him from the appellees' motion filed in the Dallas court praying for service of citation:
"The said C. W. Milner, upon whom service is desired, resides in Pike county, Ga., to which place it is desired that notice issue."
This is a part of the record, and shows that the defendant in that suit was a nonresident when those proceedings were instituted; and presumably the child, of which he was then the legal custodian, was also beyond the limits of the state of Texas. Thus the pleadings of the petitioner disclosed upon their face a cause of action over which the trial court whose powers were being invoked had no jurisdiction, and the petition should have been dismissed upon the court's own motion. This, however, was not done. The judgment record does not state what character of service was issued. But we must presume that either none was issued, or that the clerk of the court obeyed the statute.
Article 1852 of our Revised Civil Statutes required process to be issued to the county in which the defendant is alleged to reside. Where the defendant is a nonresident, or is absent from the state, article 1869 requires the clerk, upon application of any party to the suit, to issue a notice addressed to the defendant, requiring him to appear and *Page 622 answer at the time and place named. Article 1870 provides that such notice may be served by any disinterested person competent to make oath of the fact. The appellant alleges that he was served with a nonresident notice while in the state of Georgia, which is conceded to be insufficient to support a judgment by default. But it is contended that the judgment itself recites service, and that this recital is conclusive against a collateral attack. While the judgment does recite that "proper issuance and service of citation was had upon Milner," it does not in terms specify the kind of service — whether it was personal or that provided for in the statute for nonresidents, or whether notice was served within or without the limits of this state. In order to give to this recital the sanctity claimed it must be construed as stating that Milner was personally served with process within the state of Texas. The language used does not, in my judgment, require that construction. The recital is not a finding of a fact, but the statement of a legal conclusion. What is "proper service" is a question of law, and a judgment of the court upon such an issue is entitled to no more respect than is its judgment upon any other question of law involved in the case. But even if the recital should be construed as a finding that the defendant was personally served with process within the state of Texas, other portions of the record showing that he was a nonresident, the conclusiveness of the judicial finding is destroyed. For the usual presumptions in favor of domestic judgments rendered by courts of general jurisdiction do not obtain when the record shows that the defendant is a nonresident. In Kilmer v. Brown, 28 Tex. Civ. App. 420, 67 S.W. 1090, the rule is thus stated:
"A personal judgment against a nonresident, rendered on such constructive service, in void, and will not support a sale of property thereunder. But the judgment of a domestic court of general jurisdiction, having jurisdiction of the subject-matter, rendered against the defendant cited by publication, it not appearing from the record of the cause that the defendant was a nonresident, imports absolute verity, and is not subject to collateral attack."
In the case of Martin v. Burns, cited and relied on in the majority opinion, the Supreme Court appeared to attach much importance to the following conclusion of the trial judge with reference to the judgment there being assailed:
"The record in the cause not showing affirmatively that the defendants were nonresidents of the state, in a collateral proceeding it will be presumed that the court rightfully exercised jurisdiction."
In Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329, Justice Denman, who had just written the opinion in the well-known case of Crawford v. McDonald, uses this language:
"The question of the validity of judicial proceedings arises in two classes of cases. Thus there are classes of cases over which the court has not, under the very law of its creation, any possible power; e. g., an administration upon the estate of a living person, administration upon the estate of a deceased soldier when prohibited by statute, an administration in bankruptcy upon the estate of a person deceased before the institution of the proceedings, a suit for divorce in a foreign country in which neither of the parties is domiciled, or a suit to recover against a nonresident, upon service by publication, a purely personal judgment. In such cases the entire proceedings are coram non judice. The law raises no presumptions in their support, and the facts bringing any particular case within one of such classes may be established by evidence dehors the record, either in a direct or collateral attack, for the purpose of destroying the apparent binding force of such proceedings. This is upon the principle that the court, being as a matter of law without power to investigate or determine any question connected with such matters, cannot, by a clear usurpation of power, preclude inquiry into the facts establishing such usurpation, and the consequent nullity of its proceedings. In such cases the court is without jurisdiction of the subject-matter, the status of the parties, or the person of the defendant, as the case may be; and other courts have no difficulty or hesitation in ignoring its proceedings or decrees."
After enumerating a group of legal controversies which fall within the second class, and discussing the policy of protecting judgments rendered therein from collateral attacks, he continues:
"What is a direct and what is a collateral attack, and the reasons why under a collateral attack on a judgment of the class under consideration [second class discussed] evidence dehors the record will not be received, having been discussed in the case of Crawford v. McDonald [88 Tex. 626],33 S.W. 325 ([then] recently decided), and cases therein cited, need not be here restated. It may be well to state, however, that the opinion in that case had no reference whatever to the first class of causes above noticed."
In the case of Galpin v. Page, 85 U.S. (18 Wall.) 350, 21 L. Ed. 959, the court said:
"Whenever, therefore, it appears from the inspection of the record of a court of general jurisdiction that the defendant, against whom personal judgment or decree is rendered, was, at the time of the alleged service, without the territorial limits of the court, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree. This is so obvious a principle, and its observance is so essential to the protection of parties without the territorial jurisdiction of a court, that we should not have felt disposed to dwell upon it at any length, had *Page 623 it not been impugned and denied by the circuit court."
In determining what constitutes the record to be examined in ascertaining the jurisdiction of the court the following extract from the opinion in Harris v. Hardeman, 14 How. 334, 14 L. Ed. 444, is pertinent:
"In reviewing the decision of the circuit court, it should be borne in mind, as a rule to guide and control our examination, that the judgment impugned before that court was a judgment by default, and that in all judgments by default, whatever may affect their competency or regularity, every proceeding indeed, from the writ and indorsements thereon down to the judgment itself, inclusive, is part of the record, and is open to examination."
It conclusively appears from the record of the Dallas county judgment that the defendant, the appellant here, was a nonresident, and that the judgment against him was by default. That being the case, there is no such presumption of service as will preclude an inquiry into that fact. If a court acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void. Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 21 L. Ed. 897; New Mexico v. Baker,196 U.S. 432, 25 S. Ct. 375, 49 L. Ed. 540; Cooper v. Newell, 173 U.S. 555,19 S. Ct. 506, 43 L. Ed. 808; Clark v. Wells, 203 U.S. 164,27 S. Ct. 43, 51 L. Ed. 138.
In Harris v. Hardeman, supra, the court said:
"Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not, therefore, to be estopped from proving any fact which goes to establish the truth of a plea alleging the want of jurisdiction."
This rule has been recognized and applied by the federal courts in every case where a nonresident has assailed the judgment of a state court for want of jurisdiction over his person. It is also in harmony with the doctrine announced by Justice Denman in Temple v. Ferguson, supra. Under that rule the appellant in this case had a right to prove the facts alleged in his supplemental answer. These, if true, were sufficient to show the nullity of the decree upon which the appellees relied.
Whatever may be said in justification of the rule which protects the judgments of domestic courts from collateral attack for lack of jurisdiction over the person of the defendant in controversies between citizens of the same state, it can have no application to nonresident defendants who have not appeared in the case. The immunity of a nonresident from adverse judicial proceedings in a state court is guaranteed by the due process clause of the federal Constitution. This instrument is the supreme law of the land, and its provisions are not to be nullified by any rule of public policy adopted by state courts. The federal Supreme Court is the paramount authority in the interpretation of the Constitution and in determining what proceedings in a state court constitute a violation of its guaranties. Since the decision of Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, that court has, without any exception and regardless of the manner in which the question was presented, held that judgments rendered by state courts against nonresidents without service or process within the jurisdiction of the trial court were absolutely void, and unenforceable anywhere. I have been unable to find an instance where the right to interpose that defense has been qualified or made to depend upon the state of the record of the judgment assailed.
The rule could not logically be otherwise. For what the Constitution forbids being done no state court has the power to do. And that which is done in violation of the Constitution is as impotent as if done without any color of authority. To say that a state court, after having usurped authority, may protect its usurpation by making a false record of its proceedings is to legalize an indirect method of evading the Constitution.
It is no answer to say that a nonresident has the right to go into the foreign state and institute in the courts of that jurisdiction a direct proceeding to annul the unlawful judgment rendered against him. His rights are infringed, and the offense against the Constitution is committed by the mere rendition of the illegal judgment, without reference to any future attempts of enforcement. Riverside Dan Cotton Mills v. Menafee, 237 U.S. 189, 35 S. Ct. 579, 59 L. Ed. 910. This provision of the Constitution confers upon every citizen the right to remain in the state of his domicile free from any unlawful exercise of power by the courts of another state. That immunity would be incomplete if he could be compelled to leave his own state and seek relief in the very tribunal that had violated his right.
I have assumed, in discussing this question, that the due process clause of the Constitution is broad enough to include the rights here in controversy. While a child is not to be classed as property, the right of parental custody is something inherent in the status, and when sanctioned by the decree of a court is a right secured by the due process of law. It is a valuable right, not only because it gratifies a natural instinct, but because it carries with it the right to the services and the earnings of the child during its minority. In the interpretation of this protective provision I think it may be extended so as to include every right which may be affected, or taken away, by the decree of a court of justice.
There is still another viewpoint from which the judgment of the Dallas court may *Page 624 be considered, and that is with reference to the subject-matter of the suit, the custody of the child. If suits of that character so far partake of the nature of actions in rem as to exclude them from purely actions in personam, it is equally clear that the Dallas court was without jurisdiction; for it does not appear that the child was within its jurisdiction at the time the issue of custody was determined. There is no recital in the judgment which indicates a finding to that effect. On the contrary, it appears from the pleadings of the plaintiffs in that case that the child must have been with its legal custodian in the state of Georgia. If that be true, as is stated by the appellant in his replication, the validity of the Dallas court judgment is open to attack upon that ground also. There is little or no diversity of opinion in respect to the nullity of judgments in rem when the res is not within the jurisdiction of the court at the time it assumed to act. Haddock v. Haddock, 201 U.S. 562, 26 S. Ct. 530, 50 L. Ed. 867, 5 Ann.Cas. 1; Earle v. McVeigh, 91 U.S. 503, 23 L. Ed. 398; Noble v. Union River Logging Co.,147 U.S. 165, 13 S. Ct. 271, 37 L. Ed. 123; Scott v. McNeal, 154 U.S. 34,14 S. Ct. 1108, 38 L. Ed. 896; Withers v. Patterson, 27 Tex. 492,86 Am.Dec. 643; Paul v. Willis, 69 Tex. 265, 7 S.W. 357.
For the reasons stated I think the trial court erred in sustaining the demurrer to the appellant's replication, and that its judgment should be reversed.