This is a suit of appellant, Jinks McGhee, against Joseph Romatka, brought in the District Court of McLennan County, for eighty acres of land, the north one-half of quarter section No. 3 of section 28 of the University lands, situated in McLennan County. The petition was filed July 16, 1896. Upon trial by the court without a jury, judgment was rendered for Romatka, the appellee, from which the plaintiff below, Jinks McGhee, has appealed.
The court certified the principal question involved in the appeal to our Supreme Court upon the following statement, which we reiterate as a correct statement of the case and the facts:
"On August 24, 1875, Alpheus McGhee made application in accordance with the Act of the Legislature approved April 8, 1874, in regard to the sale of University land, to purchase the land in dispute, eighty acres of University land in McLennan County, at $2 per acre, a total of $160, paying $16 cash and executing his obligation to pay the remainder with 10 per cent interest per annum, in ten equal annual installments. On January 24, 1876, and February 23, 1877, he made two other payments amounting to $32 on the principal and $17.88 on the interest.
"Alpheus McGhee died in 1876 or 1877, leaving surviving him his wife, M.A. McGhee, and one child, the plaintiff in this suit, the appellant, by name Jinks McGhee, the only child of himself and wife, M.A. McGhee.
"After the death of Alpheus McGhee, his widow, M.A., married F.T. Wood, and Wood and the vendee of himself and wife made all the rest of the payments due the State for the land. September 17, 1879, F.T. Wood and M.A. Wood, husband and wife, conveyed the land by general *Page 399 warranty deed to C.E. Kingsbury, and on November 4, 1879, Kingsbury conveyed the land by special warranty to defendant below, appellee here, who went into possession thereof, and has since continuously occupied the same.
"After he, Romatka, had paid in full all the purchase money due the State on the land, on February 15, 1890, he brought suit in the court below in cause No. 5249 to clear his title to the land against the plaintiff in this cause, but by the name of Alpheus McGhee, describing him as a minor, son of Alpheus McGhee, Sr., and M.A. McGhee, who had, after the death of Alpheus McGhee, Sr., intermarried with F.T. Wood, alleging his title, as above stated. Citation issued in the cause No. 5249, and, together with certified copy of the petition in that suit, it was served upon the plaintiff in this suit, in Taylor County, Texas, who at that time was about 16 years of age, and he thereupon requested one Reed, who lived near the land in McLennan County, to look after the matter for him, and pursuant thereto, Reed procured counsel to represent the minor in the suit, who on October 10, 1890, filed an answer therein in the name of Alpheus McGhee, as sued.
"At the October term, 1890, the court appointed one T.C. Smith, Esq., an attorney of the court, guardian ad litem, to represent the minor in the cause No. 5249, and he thereafter appeared and answered as such guardian ad litem, all the proceedings being as against defendant in the name of Alpheus McGhee. December 4, 1890, the cause was tried and final judgment rendered in favor of the plaintiff Romatka for the land sued for in the present suit, as follows:
"`Joseph Romatka v. Alpheus McGhee. — Thomas C. Smith, guardian ad litem for defendant. December 4, 1890.
"`This day came the parties by their attorneys, defendant represented by guardian ad litem, T.C. Smith, Esq., heretofore appointed to represent him, and, a jury being waived, submit all matters in controversy, as well of fact as of law, to the court. All demurrers having been first overruled, and evidence and argument of counsel having been heard and fully understood, it is considered and decreed by the court, that Alpheus McGhee, Sr., is dead; that he left surviving him his widow, M.A. McGhee, who afterwards married F.T. Wood, and this defendant as their son and only child, as his sole surviving heir; that said M.A. Wood and her husband sold the land herein described to C.E. Kingsbury, who sold it to Joseph Romatka, with the greater part of the purchase money of said land unpaid and owing to the State of Texas, and that said M.A. Wood, joined by her husband, filed right to sell said land in liquidation of the community debt existing as aforesaid against the same; and that plaintiff recover of the defendant the premises described and bounded as follows' [then follows a description of the eighty acres of land, and the judgment proceeds]: `and that all title be divested out of said defendant and invested to plaintiff to said land, and that execution issue in favor of the officers of the court against plaintiff for all costs of the court, including a fee of $25 allowed said guardian ad litem.' *Page 400
"On the 23d of July, 1891, a patent was issued by the State to Joseph Romatka, assignee of Alpheus McGhee, for the land, he paying the patent fees.
"April 23, 1896, the attorney for Jinks McGhee, not knowing that his name was Jinks, but supposing it was Alpheus, after said Jinks McGhee had reached his majority, filed a motion in cause No. 5249, against Joseph Romatka, to have the judgment of December 4, 1890, vacated. That petition was amended July 10, 1896, in the name of Jinks McGhee, setting up the same grounds for vacating the judgment as in the original petition, and showing his name to be Jinks McGhee; that there was no such person as Alpheus McGhee, son and heir of Alpheus McGhee, Sr., deceased. That proceeding was answered by Joseph Romatka, and the court sustained his exceptions to the suit to vacate the former judgment upon the ground, as stated in the ruling, that the court being of the opinion that Jinks McGhee, being a stranger to said judgment, should not interfere therein.
"The attorney that filed the suit to vacate the judgment, at the time of filing the suit, was not advised that `Jinks' was the name of his client, but that the minor heir of Alpheus McGhee desired the judgment vacated. Hence he made the application to set the judgment aside in the name of the original defendant, Alpheus McGhee. He afterwards learned the facts that there was no Alpheus McGhee, but that Jinks McGhee was the heir, and he amended his suit accordingly; the court below holding, as stated, on exceptions, that he was a stranger to the suit and could not interfere in setting the judgment aside. There was in fact no such person as Alpheus McGhee, sued originally as the heir of Alpheus McGhee, Sr., deceased, son of the senior McGhee and his wife, M.A. McGhee. The plaintiff in this suit, Jinks McGhee, was that son and heir, and was never known or called Alpheus McGhee. He was, however, the very person upon whom the citation, with copy of petition in the original suit of Romatka v. Alpheus McGhee, was served, and Reed for him secured the services of Pearre Boynton, attorneys, to file answer for him, which they did, but had no further connection with the suit. The guardian ad litem was appointed in the original suit for the defendant therein, Alpheus McGhee, and not for Jinks McGhee.
"The suit was filed by Jinks McGhee for an undivided half of the eighty acres of land recovered by Romatka in the original suit against Alpheus McGhee, described in the petition as the minor son of Alpheus McGhee, who applied for the purchase of the land, and who paid a part of the purchase price thereof.
"The case was tried by the court without a jury and judgment was rendered for defendant Romatka for the land, etc., upon the ground that the judgment of the court of December 4, 1890, in cause No. 5249, was not void as to Jinks McGhee, the plaintiff herein, and was not subject to collateral attack; that the suit brought by plaintiff in April, 1896, to have the judgment set aside and vacated, was a direct attack upon the first judgment in the cause No. 5249, and that the judgment of July 10, 1896, *Page 401 upon the demurrer, was a final adjudication against plaintiff of his right to have the judgment set aside, which, not having been reversed, is final between the parties in this suit. Wherefore, the court concluded that the matters now in suit are res adjudicata, and judgment was accordingly rendered for the defendant Romatka for the land.
"Now the Court of Civil Appeals of the Third Supreme Judicial District of the State of Texas, by its Chief Justice, hereby certifies the following question arising in the case now in appeal to this court, to wit:
"Under the facts stated, were the judgments in the original suit No. 5249 res adjudicata as to the parties to this suit and the matters now in dispute, and binding upon the present plaintiff, and authorizing judgment against him in this suit, the court having decided in the suit to vacate the original judgment, that Jinks McGhee was a stranger to that suit and had no right to set the judgment aside?"
The Supreme Court, upon the issues presented, then said:
"The judgment of December 4, 1890, was not void as to but was binding upon Jinks McGhee, unless and until set aside in some direct attack thereon, the fact that he was sued by the wrong name `being available only by plea in abatement' in that suit (Insurance Co. v. French, 18 How., 404; Parry v. Woodson, 84 Am. Dec., 51; 33 Mo., 347), and the fact that the guardian ad litem was appointed for Alpheus McGhee being at most an irregularity not affecting the power of the court to render the judgment, since it would have had such power if no appointment had been made. Martin v. Weyman, 26 Tex. 460; Montgomery v. Carlton,56 Tex. 361; 1 Black on Judg., sec. 193.
"The motion filed April 23, 1896, in the name of Alpheus, and amended July 10, 1896, in the name of Jinks McGhee, was a direct attack upon the judgment. The exception challenged the right ofJinks McGhee to attack the judgment for any cause, evidently for the reason that he did not appear upon the face of the record to have been party thereto, and could not be shown to have been such by parol evidence. The court in sustaining such exception necessarily held that Jinks McGhee could not attack the judgmentfor any cause, and therefore had no cause of action. It follows that the ruling was upon the merits of his case. If the court erred in law in so holding, he should have had such erroneous decision set aside. Until he does so, he is precluded thereby from making this similar attack. Clayton v. Hurt, 88 Tex. 595. Otherwise, there would be no end to the number of attacks he might make if the court continued to sustain similar exceptions.
"We answer the question certified in the affirmative."
Opinion. — From the foregoing it is evident that appellant's assignments of error can not be sustained. It was not error to admit in evidence the record and judgment in cause No. 5249; nor in admitting the judgment and proceedings to set aside that judgment; nor was it error to hold that the judgment of July 10, 1896, was res adjudicata of the *Page 402 rights of Jinks McGhee. The original petition in cause No. 5249 was not bad on general demurrer.
We therefore conclude that the judgment in this cause must be affirmed, and it is so ordered.
Affirmed.