WILLIAMS, Associate Justice.
The leading question in this case is, whether or not the judgment under which appellant’s testator bought the land in controversy was void. If it was not, the judgment appealed from is erroneous and should be reversed, and a decision of the other points presented in the briefs will be unnecessary.
The facts upon which the question arises are the following: On the 9th of July, 1874, L. A. Abercrombie and J. H. Banton, who had been partners in the practice of law, brought suit in the District Court of Madison County against three married women, Mrs. Wells, Mrs. Manning, and Mrs. Brantley, joining their husbands, alleging the residence of the two former to be in Madison County, and that Mrs. Brantley was a nonresident of the State. The suit was to recover a fee for services rendered by plaintiffs in prosecuting a suit to recover lands which were the separate property of the married women, and for the value of which, it was alleged, they had agreed to pay plaintiffs at the termination of the suit. It was further alleged, that the suit had been finally determined in favor of said married women, and that the services were worth $525.
The other essential allegations were made. At the institution of the suit, an attachment for $525 was taken out against the property of Mrs. Brantley, and was levied on the land in controversy, situated in Walker County.
Subsequently Banton died, and Abercrombie was allowed to prosecute the suit as surviving partner. On the 8th of August, 1874, Abercrombie filed an amended petition, in which he repeated substantially the allegations of the original petition, except that he averred that each of the female defendants had agreed to pay her proportionate share of the value of the services to be rendered, or the third of the whole amount, and charging the liability of each to be $175; and also alleging, in terms, that the debt was incurred for the benefit of the separate property of the married women.
On the 17th day of August, 1875, a judgment was entered in that cause, which recited “that the defendants, ¡Nancy S. Wells and her husband, Harrison Wells, and Elvira L. Manning and her husband, John W. Manning, have not been served with process or citation in this cause. The plaintiff says he will no further prosecute his said suit against said defendants;” that “the defendant, Georgia Ann Brantley, having failed to appear and answer in this behalf, but wholly made default,” etc.; proceeding to adjudge against those defendants the sum claimed in the amended petition, interest and costs, and fore
closing the attachment lien on the land attached. On the 18th day of August, 1875, the plaintiff in that suit filed his motion to set aside “ the judgment herein rendered yesterday in his favor,” on the ground that there was grave doubt as to the sufficiency of the service upon the Brantleys, and “in order that he may obtain service upon said Georgia Ann Brantley.” On this motion the following order was made:
“On this August 1st came on to be heard plaintiffs’ motion to set aside judgment rendered in the cause at a former day of this term, because of a doubt of the legality of the citation served against or on the defendants, and upon consideration the said motion is sustained by the court; and it is therefore ordered, that said judgment be set aside and held for naught, and that said cause be reinstated on the docket.”
On the 16th day of February, 1876, citation for publication to the Brantleys was issued. ¡No point is made in the briefs as to the sufficiency of the citation and its service. It commanded the sheriff to summon Georgia Ann Brantley and her husband to answer the petition of L. A. Abercrombie, surviving partner, etc., against “Georgia Ann Brantley and William Brantley, Harrison Wells and his wife, ¡Nancy Wells, John W. Manning and his wife, Elvira Manning;” gave the substance of the allegations in the pleadings of plaintiff as amended, and contained all the other essential parts of such process. It made no mention of the fact that the cause had been discontinued as to all defendants except Brantley and wife. The return of the sheriff shows publication for the requisite time, and no exception is taken to its sufficiency. June 27, 1876, the cause was, by order of the District Court, transferred to the County Court. September 19, 1876, it was by order of the County Court transferred to the Justice Court.
On the 3rd of October, 1876, the judgment in question was entered in the Justice Court. It recites, that the defendants Wells and wife and Manning and wife had not been served with process, and that plaintiff no further prosecutes his suit against them; that Mrs. Brantley and husband failed to appear; that service of process in this cause had been duly made upon them by publication in proper manner and for the legally required length of time, and proceeds to adjudge against them, in plaintiff’s favor, the sum claimed in the amended petition, interest and costs, and to foreclose the lien of the attachment originally issued and served; adjudging also, that the separate property of Mrs. Manning is subject to the debt.
Under an order of sale, issued on this judgment, the land was sold by the sheriff, and bought by and conveyed by sheriff to testators of appellants.
The facts above stated appear from the documents referred to, copies of which were introduced in evidence. The clerks of the District and County Courts and the justice certify to the orders and judgment from
their respective courts, and that they are all that appear of record therein. But the other papers were offered separately, and there is no certificate or other evidence that they are all that are on file; nor is there anything to show that a complete transcript of all of the papers from either of the courts was produced.
The defendants bought-the land from Brantley and wife after the rendition of the judgment in the Justice Court, but before the sheriff’s sale at which Abercrombie and Gibbs purchased. Subsequently, believing that the title of Abercrombie and Gibbs was superior to that which they had acquired by their purchase from Brantley and wife, defendants bought from the former, giving their notes for the purchase money, and receiving a deed which reserved a vendor’s lien on the laud until the notes should be paid. The notes were never paid, and this suit was brought by Abercrombie and Gibbs to rescind the contract of sale and recover the land. Defendants pleaded the facts above set forth, claimed that they had received a good title from Mrs. Brantley, and prayed also for a rescission, but resisted the plaintiffs’ right to a judgment for the land. There was no evidence of any representation made by Abercrombie to Gibbs to induce the purchase by defendants.
The court below held that the judgment was void; that there was no consideration for the sale from Abercrombie and Gibbs to defendants; that the contract should be rescinded; and that defendants should recover the land.
Conclusions of
Law.—1. The amendment of his pleadings filed by Abercrombie in the former suit was not such a change of his cause of action as operated as an abandonment of the original suit, or a dissolution or abatement of the attachment.
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WILLIAMS, Associate Justice.
The leading question in this case is, whether or not the judgment under which appellant’s testator bought the land in controversy was void. If it was not, the judgment appealed from is erroneous and should be reversed, and a decision of the other points presented in the briefs will be unnecessary.
The facts upon which the question arises are the following: On the 9th of July, 1874, L. A. Abercrombie and J. H. Banton, who had been partners in the practice of law, brought suit in the District Court of Madison County against three married women, Mrs. Wells, Mrs. Manning, and Mrs. Brantley, joining their husbands, alleging the residence of the two former to be in Madison County, and that Mrs. Brantley was a nonresident of the State. The suit was to recover a fee for services rendered by plaintiffs in prosecuting a suit to recover lands which were the separate property of the married women, and for the value of which, it was alleged, they had agreed to pay plaintiffs at the termination of the suit. It was further alleged, that the suit had been finally determined in favor of said married women, and that the services were worth $525.
The other essential allegations were made. At the institution of the suit, an attachment for $525 was taken out against the property of Mrs. Brantley, and was levied on the land in controversy, situated in Walker County.
Subsequently Banton died, and Abercrombie was allowed to prosecute the suit as surviving partner. On the 8th of August, 1874, Abercrombie filed an amended petition, in which he repeated substantially the allegations of the original petition, except that he averred that each of the female defendants had agreed to pay her proportionate share of the value of the services to be rendered, or the third of the whole amount, and charging the liability of each to be $175; and also alleging, in terms, that the debt was incurred for the benefit of the separate property of the married women.
On the 17th day of August, 1875, a judgment was entered in that cause, which recited “that the defendants, ¡Nancy S. Wells and her husband, Harrison Wells, and Elvira L. Manning and her husband, John W. Manning, have not been served with process or citation in this cause. The plaintiff says he will no further prosecute his said suit against said defendants;” that “the defendant, Georgia Ann Brantley, having failed to appear and answer in this behalf, but wholly made default,” etc.; proceeding to adjudge against those defendants the sum claimed in the amended petition, interest and costs, and fore
closing the attachment lien on the land attached. On the 18th day of August, 1875, the plaintiff in that suit filed his motion to set aside “ the judgment herein rendered yesterday in his favor,” on the ground that there was grave doubt as to the sufficiency of the service upon the Brantleys, and “in order that he may obtain service upon said Georgia Ann Brantley.” On this motion the following order was made:
“On this August 1st came on to be heard plaintiffs’ motion to set aside judgment rendered in the cause at a former day of this term, because of a doubt of the legality of the citation served against or on the defendants, and upon consideration the said motion is sustained by the court; and it is therefore ordered, that said judgment be set aside and held for naught, and that said cause be reinstated on the docket.”
On the 16th day of February, 1876, citation for publication to the Brantleys was issued. ¡No point is made in the briefs as to the sufficiency of the citation and its service. It commanded the sheriff to summon Georgia Ann Brantley and her husband to answer the petition of L. A. Abercrombie, surviving partner, etc., against “Georgia Ann Brantley and William Brantley, Harrison Wells and his wife, ¡Nancy Wells, John W. Manning and his wife, Elvira Manning;” gave the substance of the allegations in the pleadings of plaintiff as amended, and contained all the other essential parts of such process. It made no mention of the fact that the cause had been discontinued as to all defendants except Brantley and wife. The return of the sheriff shows publication for the requisite time, and no exception is taken to its sufficiency. June 27, 1876, the cause was, by order of the District Court, transferred to the County Court. September 19, 1876, it was by order of the County Court transferred to the Justice Court.
On the 3rd of October, 1876, the judgment in question was entered in the Justice Court. It recites, that the defendants Wells and wife and Manning and wife had not been served with process, and that plaintiff no further prosecutes his suit against them; that Mrs. Brantley and husband failed to appear; that service of process in this cause had been duly made upon them by publication in proper manner and for the legally required length of time, and proceeds to adjudge against them, in plaintiff’s favor, the sum claimed in the amended petition, interest and costs, and to foreclose the lien of the attachment originally issued and served; adjudging also, that the separate property of Mrs. Manning is subject to the debt.
Under an order of sale, issued on this judgment, the land was sold by the sheriff, and bought by and conveyed by sheriff to testators of appellants.
The facts above stated appear from the documents referred to, copies of which were introduced in evidence. The clerks of the District and County Courts and the justice certify to the orders and judgment from
their respective courts, and that they are all that appear of record therein. But the other papers were offered separately, and there is no certificate or other evidence that they are all that are on file; nor is there anything to show that a complete transcript of all of the papers from either of the courts was produced.
The defendants bought-the land from Brantley and wife after the rendition of the judgment in the Justice Court, but before the sheriff’s sale at which Abercrombie and Gibbs purchased. Subsequently, believing that the title of Abercrombie and Gibbs was superior to that which they had acquired by their purchase from Brantley and wife, defendants bought from the former, giving their notes for the purchase money, and receiving a deed which reserved a vendor’s lien on the laud until the notes should be paid. The notes were never paid, and this suit was brought by Abercrombie and Gibbs to rescind the contract of sale and recover the land. Defendants pleaded the facts above set forth, claimed that they had received a good title from Mrs. Brantley, and prayed also for a rescission, but resisted the plaintiffs’ right to a judgment for the land. There was no evidence of any representation made by Abercrombie to Gibbs to induce the purchase by defendants.
The court below held that the judgment was void; that there was no consideration for the sale from Abercrombie and Gibbs to defendants; that the contract should be rescinded; and that defendants should recover the land.
Conclusions of
Law.—1. The amendment of his pleadings filed by Abercrombie in the former suit was not such a change of his cause of action as operated as an abandonment of the original suit, or a dissolution or abatement of the attachment. The facts stated in the original petition, so far as they tended to show a liability of the separate property of the married women, showed such liability to be just what by the amendment it was declared to be. If the attorneys were employed by the married women to recover the property in which v they were jointly interested, each might thereby make her separate property liable to the extent that it was benefitted by the services, but could hardly charge it with expenses incurred by her coplaintiffs for their own benefit. Though a joint undertaking of them all was alleged in the original petition, it is believed that the effect upon the married women could only have been as just stated. By describing the agreement as joint, the plaintiff may have run the risk of a variance between his allegations and proof, if the latter showed it to have been several; but the liability of the married women would have been the same in either case. The amendment did not seek to impose any additional burden on the land attached, or set up any new claim to the injury of the defendant; nor did it change the identity of the cause
of action asserted, or the character in which the plaintiff sued, or in. which Mrs. Brantley was sought to be made liable. It simply corrected an error in the original petition by stating a several agreement, instead of a joint one, and by making definite what had before been left somewhat uncertain as to the character of the claim asserted, but not, as we have seen, changing the liability resulting from the facts first stated. All this we understand to be the proper office of amendment. It maybe true that a plaintiff can not attach upon one cause of action, thus getting jurisdiction over property when there is none over the person, and afterwards set up an entirely new one, and upon that seek to hold the property seized; for in order to enforce the jurisdiction over the property, the judgment must be rendered in the same suit in which it was seized; and in the case supposed, the amendment would, in all essentials, be the bringing of a new action. But a plaintiff may amend his pleadings in this kind of a suit as well as in others, and the amendment in question was only an exercise of that right, and left the attachment in force.
2. Did the Justice Court acquire jurisdiction of the cause and over the attached property! We hold that it did. All presumptions are to be indulged in favor of such jurisdiction. We are not assured that we have before us all the papers which were filed in the District and County Courts before the suit was transferred to the Justice Court. For aught that appears, there may have been pleadings filed dismissing the suit as against all of the defendants except the Brantleys. If there had been such dismissal, the order of the County Court transferring to the Justice Court, and of the latter court entertaining jurisdiction, which otherwise would appear to have been wrong, would be supported as correct. What should be the presumption! We think, clearly, the fact which would sustain the action of the courts. But, taking the record as presented, we think the jurisdiction of the Justice Court can still be maintained. The record entry in the District Court shows that there was a dismissal as to the Welshes and Mannings. In the same entry was a judgment against Mrs. Brantley and husband. The motion made to set aside the judgment did not, we think, reach the order of dismissal, but only the judgment. The language used in the motion and order shows that it was only this judgment that was set aside. Thereafter the suit was against Mrs. Brantley alone, for a sum within the jurisdiction of the justice of the peace. This was not affected by the fact that that officer subsequently, in rendering judgment, recited that plaintiffs dismissed as to the other defendants. That had been done in the District Court, and the facts which conferred jurisdiction on the Justice Court having transpired, such power was not affected by the recital in the judgment. The other defendants were not before that court for any adjudication.
Delivered June 14, 1894.
The transfer of the cause should have been made directly from the District Court to the Justice Court, but the fact that it went through the County Court was an irregularity merely, which did not defeat the jurisdiction of the proper tribunal when finally reached.
3. The suit was properly brought in the county where some of the defendants resided, and the attachment could properly run to any county in the State where Mrs. Brantley had property.
4. The attachment was regular when sued out, and the fact that the demand was subsequently reduced without change in its character, did not render the writ nugatory.
5. The judgment of the Justice Court, in so far as it foreclosed the attachment lien on the property and charged the debt upon it, was valid, and the sale under it passed the title to the purchasers.
6. The sale to defendants being executory, and the purchase money having been neither paid nor tendered, plaintiffs were entitled to recover the land sued for. The judgment is therefore reversed, and judgment will be here rendered for plaintiffs for the land.
Reversed and rendered.