A more extended examination of the authorities, induced by the cogent argument of appellants' counsel submitted as a part of this motion, has convinced us that the judgment in favor of appellees for lot 2 should also be reversed, on the ground that the Justice Court judgment, through which they deraigned title, is void.
In the conclusions heretofore filed, we held that the citation served on John Pope, September 15, 1884, which notified him to appear before the justice of the peace on the first Monday instead of the fourth Monday (the term as fixed by the Commissioners Court) in October, 1884, while too defective to support a judgment by default, when assailed in a direct proceeding, should be held sufficient to support such judgment in a collateral suit.
While no case has been cited or found in this State directly in point, the decisions elsewhere seem to sustain the contention that such process is not merely defective, affording some notice and some service, which would be sufficient on collateral attack, but that it does not purport, either in form or substance, to be such as the law requires, and is therefore void. Hence no jurisdiction of the person is thereby, even defectively, obtained, a void writ being in legal contemplation no writ at all. *Page 308
In Culver v. Phelps, 130 Illinois, 217, which was a suit to remove cloud cast by the sale of property under a judgment rendered the 6th day of December, 1875, on a summons issued the 6th day of October, 1875, commanding the defendant to appear at the next October Term, several terms intervening, the process was held null, and the judgment void.
In Kitsmiller v. Kitchen, 24 Iowa 163, a judgment offered in evidence under a plea of res adjudicata was held void, because citation did not name the time when, and place where, defendant was required to appear.
In Falkner v. Guilk, 10 Wisconsin, 506, a judgment rendered in a partition suit, and offered in evidence as a muniment of title, was held void, because notice in that suit did not name the time for appearance, though service of the notice was accepted.
In Rice v. Bank, 31 Pacific Reporter, 1024, the Court of Appeals of Colorado restate with much force the reasons for holding such process void, but that, like all of the other cases save one cited by appellants, was a direct attack on the judgment, which was enjoined because the citation stated an impossible date.
In Steel v. Metcalf, 4 Texas Civil Appeals, 313 (23 Southwestern Reporter, 474), which was a suit for damages against a sheriff for executing an order of sale directed to the sheriff of another county, we held the process to be void on its face in the county where its execution was attempted.
Our statute, article 1570, requires the citation to cite the defendant to some regular term of the Justice Court. This it did not do, nor purport to do. If it had purported to cite him to some regular term, naming it, but incorrectly stating when it was to be held, it would probably have been sufficient on collateral attack. It would then be a defective statement merely of the term for appearance, the true date of which, as fixed by law, the party would be presumed to know. Rigsbee v. Bowler, 17 Ind. 167.
We conclude that, inasmuch as the default judgment rendered by the justice of the peace is silent upon the subject of service, and the citation offered in evidence as the foundation of this judgment, with service indorsed thereon, did not confer jurisdiction of the person, a want of jurisdiction was affirmatively shown, and therefore the court below should have so held. Treadway v. Eastburn, 57 Tex. 213; Freem. on Judg., sec. 125; Clark v. Thompson, 47 Ill. 25.
We, however, still adhere to our conclusions as to the other lot. Appellees alleged and proved, that they held it under a trustee's sale made to foreclose a valid mortgage thereon, and that the money paid by appellee Ludwig Krapf as purchaser at this sale extinguished the debt which this mortgage had been executed to secure, praying for affirmative relief. The fact that he afterwards conveyed this lot to Paul Schultz, who in turn conveyed it to his wife, Serena Krapf, was no sufficient replication to the equitable defense interposed. It was *Page 309 still, on the face of this record, the property of Ludwig Krapf, there being no evidence of any separate estate in his wife, if indeed that would change the status.
While the prayer of appellees to recover back the money paid may not have been strictly accurate, enough was stated and claimed to show that they asked for affirmative equitable relief, and under the case made by the proof, they were entitled to retain possession of the lot until appellants should make an equitable reimbursement of the money expended in removing the incumbrance therefrom.
The rehearing will be granted, and the entire judgment reversed and the cause remanded for a new trial in accordance with this opinion and that heretofore filed, as here modified.
Reversed and remanded.