It may not be questioned that the entry upon the judge's probate docket of the permanent appointment of the guardian was competent and sufficient record evidence to establish the fact that such order was made and declared by the probate court at the term when it was made. West v. Keeton, 17 Tex. Civ. App. 139, 42 S.W. 1034, and other cases. The case of Threatt v. Johnson, 156 S.W. 1137, decided by this court, is not contrary to the above cases. In this Threatt Case no order making the guardianship permanent was entered on the judge's docket or in the minutes or otherwise in any record or memorandum form. But duly important and necessitating comment in the present case is the further established fact that the probate records are entirely silent as to issuance and return of citation evidencing jurisdiction of the probate court to make the order offered in evidence. The judge's order does not recite or refer to citation in the proceeding. There was no citation and return of record, or in the clerk's files, or in any official memorandum form in the probate rolls. It is the well-established rule that when the records of a court of general jurisdiction, as the jurisdiction of the probate court is considered in this state, showing an adjudication in a common proceeding, comes in question collaterally, service will be presumed when the record is silent. Guilford v. Love, 49 Tex. 715, and other cases. This means that the party introducing the record need not produce the process nor the return, as the presumption is that they are regular and rightful. Yet, as is also the established rule, as to the question of jurisdiction, the judgment declared is not conclusive and can be impeached by proper pleading, in direct attack of illegality. The appellants specially set up the affirmative plea that there is no such matter of record existing, and tendered issue in that form, as to jurisdiction of the court to enter the order at all. Such plea is permissible pleading, and can be made available in a proceeding nunc pro tune. Defects of jurisdiction appearing in the face of the record may be taken advantage of on its production under such plea attacking the record. The plea is in purpose and effect a direct attack upon the jurisdiction of the court, in impeachment of the record, by affirmative averment showing its absence of record.
The conceded general rule is that in any case where the court did actually render a formal judgment, but the same has not been spread at large upon the minutes of the court, in consequence of neglect or of any accident, the court has the inherent power to order that the judgment once pronounced be entered nunc pro tune, upon the production of proper evidence to establish the fact of the judgment and to show its terms and character and the relief granted. We doubt such practice must be taken with the restriction, as held, that such entry nunc pro tune is not proper unless at the date to which the judgment is to relate back a
final judgment could then legally have been entered immediately, as within the jurisdiction of the court to do, and that an order entered up at a former term not sanctioned by law cannot be entered nunc pro tunc. Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S.W. 909. The rule is to the contrary of that practice. So trying the issue raised under the pleading by an inspection of the rolls of the probate court it is apparent from the face thereof that the appellants' allegations are sustained that evidence in any form of the issuance and actual return of citation did not appear on the record or in the files of the probate court. The power of the probate court to appoint a permanent guardian is statutory, and the citation and return prescribed by statute is jurisdictional to the exercise of that authority. Articles 4123, 4137, R.S. The statute expressly requires the citation and return to be placed of record at large in the probate minutes. Article 4106, R.S. The intendment of this provision of the law is to prescribe what shall be deemed enduring conclusive evidence that such acts have been done. The appellee undertook to meet the plea and proof of appellants in the above respect by recourse to extrinsic evidence. The intendment was to show that proper service was made and that such citation and return did actually appear of record or in the clerk's files at the time the judge made the order, but has since been lost and cannot be produced in the present trial. The evidence offered was substantially as herein stated. The publisher of the newspaper testified that he received from the hands of the attorney for the guardian a citation under the signature of the county clerk; that he was acquainted with the signature of the county clerk; that he published the same the required time; that he made affidavit of the fact of publication and attached it together with a clipping of the publication to the original citation. The publisher of the paper was unable to say to whom he delivered the published notice and original. As he says:
"I attached a copy of the publication and affidavit to the original citation, and either returned it to the court or the attorney for the guardian. * * * I cannot say whether I returned it to the clerk or the attorney for the guardian."
The letter of the attorney for the guardian, offered in evidence, addressed to the publisher of the newspaper, reads:
"Inclosed find citation on appointment of temporary guardianship, which please publish for the length of time required by law and return to me with copy of publication attached together with your fee."
The probate judge himself was unable to say "that I had citation and return before me at the time of entering the order, or that I know service was had." He could only say that it was his "custom to always call for the citation and return of the officer." Based upon that custom entirely, the judge says:
"I either had it before me or was assured by the attorneys that notice or citation had been properly served and that they would see that it was filed in court."
The newspaper clipping in the possession of the attorney, but not the same one claimed to be attached to the original citation by the publisher, was offered in evidence. It appeared in proper form, addressed to the sheriff, and commanding him to cause it to be published in a newspaper of general circulation. The return day of the citation appeared to be January 15, 1923, the first day of a regular term of the probate court. The clerk of the court does not testify that he issued the citation, and neither does he or any deputy testify that the citation after publication was returned into his custody or files. The sheriff or any deputy does not testify that citation was ever received or return was ever made of it. The evidence is entirely silent as to the fact that the citation, if issued, was returned at any time into the court or placed in the files of the clerk. The testimony offered respecting the citation and return was not, quoting from Camoron v. Thurmond, 56 Tex. at page 29, "as full and ample and with all the sanction necessary to establish any other fact."
The question, in view of appellants' plea, is precisely that of whether the citation and return did actually appear of record, or its equivalent, in the files of the clerk at the time of the order of the probate judge. Unless the citation was actually returned at the time, then the proceeding would stand as one with citation and return, the essential jurisdictional fact, wanting, rendering the probate order made premature and void.
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It may not be questioned that the entry upon the judge's probate docket of the permanent appointment of the guardian was competent and sufficient record evidence to establish the fact that such order was made and declared by the probate court at the term when it was made. West v. Keeton, 17 Tex. Civ. App. 139, 42 S.W. 1034, and other cases. The case of Threatt v. Johnson, 156 S.W. 1137, decided by this court, is not contrary to the above cases. In this Threatt Case no order making the guardianship permanent was entered on the judge's docket or in the minutes or otherwise in any record or memorandum form. But duly important and necessitating comment in the present case is the further established fact that the probate records are entirely silent as to issuance and return of citation evidencing jurisdiction of the probate court to make the order offered in evidence. The judge's order does not recite or refer to citation in the proceeding. There was no citation and return of record, or in the clerk's files, or in any official memorandum form in the probate rolls. It is the well-established rule that when the records of a court of general jurisdiction, as the jurisdiction of the probate court is considered in this state, showing an adjudication in a common proceeding, comes in question collaterally, service will be presumed when the record is silent. Guilford v. Love, 49 Tex. 715, and other cases. This means that the party introducing the record need not produce the process nor the return, as the presumption is that they are regular and rightful. Yet, as is also the established rule, as to the question of jurisdiction, the judgment declared is not conclusive and can be impeached by proper pleading, in direct attack of illegality. The appellants specially set up the affirmative plea that there is no such matter of record existing, and tendered issue in that form, as to jurisdiction of the court to enter the order at all. Such plea is permissible pleading, and can be made available in a proceeding nunc pro tune. Defects of jurisdiction appearing in the face of the record may be taken advantage of on its production under such plea attacking the record. The plea is in purpose and effect a direct attack upon the jurisdiction of the court, in impeachment of the record, by affirmative averment showing its absence of record.
The conceded general rule is that in any case where the court did actually render a formal judgment, but the same has not been spread at large upon the minutes of the court, in consequence of neglect or of any accident, the court has the inherent power to order that the judgment once pronounced be entered nunc pro tune, upon the production of proper evidence to establish the fact of the judgment and to show its terms and character and the relief granted. We doubt such practice must be taken with the restriction, as held, that such entry nunc pro tune is not proper unless at the date to which the judgment is to relate back a
final judgment could then legally have been entered immediately, as within the jurisdiction of the court to do, and that an order entered up at a former term not sanctioned by law cannot be entered nunc pro tunc. Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S.W. 909. The rule is to the contrary of that practice. So trying the issue raised under the pleading by an inspection of the rolls of the probate court it is apparent from the face thereof that the appellants' allegations are sustained that evidence in any form of the issuance and actual return of citation did not appear on the record or in the files of the probate court. The power of the probate court to appoint a permanent guardian is statutory, and the citation and return prescribed by statute is jurisdictional to the exercise of that authority. Articles 4123, 4137, R.S. The statute expressly requires the citation and return to be placed of record at large in the probate minutes. Article 4106, R.S. The intendment of this provision of the law is to prescribe what shall be deemed enduring conclusive evidence that such acts have been done. The appellee undertook to meet the plea and proof of appellants in the above respect by recourse to extrinsic evidence. The intendment was to show that proper service was made and that such citation and return did actually appear of record or in the clerk's files at the time the judge made the order, but has since been lost and cannot be produced in the present trial. The evidence offered was substantially as herein stated. The publisher of the newspaper testified that he received from the hands of the attorney for the guardian a citation under the signature of the county clerk; that he was acquainted with the signature of the county clerk; that he published the same the required time; that he made affidavit of the fact of publication and attached it together with a clipping of the publication to the original citation. The publisher of the paper was unable to say to whom he delivered the published notice and original. As he says:
"I attached a copy of the publication and affidavit to the original citation, and either returned it to the court or the attorney for the guardian. * * * I cannot say whether I returned it to the clerk or the attorney for the guardian."
The letter of the attorney for the guardian, offered in evidence, addressed to the publisher of the newspaper, reads:
"Inclosed find citation on appointment of temporary guardianship, which please publish for the length of time required by law and return to me with copy of publication attached together with your fee."
The probate judge himself was unable to say "that I had citation and return before me at the time of entering the order, or that I know service was had." He could only say that it was his "custom to always call for the citation and return of the officer." Based upon that custom entirely, the judge says:
"I either had it before me or was assured by the attorneys that notice or citation had been properly served and that they would see that it was filed in court."
The newspaper clipping in the possession of the attorney, but not the same one claimed to be attached to the original citation by the publisher, was offered in evidence. It appeared in proper form, addressed to the sheriff, and commanding him to cause it to be published in a newspaper of general circulation. The return day of the citation appeared to be January 15, 1923, the first day of a regular term of the probate court. The clerk of the court does not testify that he issued the citation, and neither does he or any deputy testify that the citation after publication was returned into his custody or files. The sheriff or any deputy does not testify that citation was ever received or return was ever made of it. The evidence is entirely silent as to the fact that the citation, if issued, was returned at any time into the court or placed in the files of the clerk. The testimony offered respecting the citation and return was not, quoting from Camoron v. Thurmond, 56 Tex. at page 29, "as full and ample and with all the sanction necessary to establish any other fact."
The question, in view of appellants' plea, is precisely that of whether the citation and return did actually appear of record, or its equivalent, in the files of the clerk at the time of the order of the probate judge. Unless the citation was actually returned at the time, then the proceeding would stand as one with citation and return, the essential jurisdictional fact, wanting, rendering the probate order made premature and void. Assume that it was shown in the proof that a citation issued and was published the required time, yet this was only an intermediate proceeding between the commencement of the guardianship application and the order of the probate judge. Proof was as much needed of the actual return of the publication, in order to confer complete jurisdiction, as proof of the actual issuance and publication of the citation. It is required in order to make completed service of process, as evidencing a jurisdictional fact, to have actual official return as well as issuance and publication. The statute expressly requires the officer executing process to make due return of its execution. Article 2043. The return is a necessary part of the probate records or rolls, because it constitutes a part of the official proof of service. The court can only look to that source of proof in entertaining jurisdiction to render final judgment. Absence of return would operate to halt the entering of final judgment for lack of legal
proof of service. In the absence, as here, of any circumstances reasonably indicating, directly or inferentially, that citation and return was actually received by the sheriff and placed among the clerk's files, it could not reasonably be concluded that it had been lost since that date. Presumption could not be indulged that it had been returned and lost, in view of the evidence directly disclosing the want of citation and return of record or in the clerk's files. Such facts prima facie appearing, it could no longer be presumed that the facts were otherwise. Direct evidence became necessary to show the facts were otherwise. Therefore there was not production of citation and return in answer to appellants' plea, operating to confer authority upon the court to vacate the judgment.
The judgment is reversed, and judgment is here entered denying the application for judgment nunc pro tunc, and vacating the judgment. All costs to be taxed against appellee.
On Rehearing.
Upon a reconsideration of the record and upon our own motion we have reached the conclusion that we were in error in treating the plea of appellants as in effect a sufficient cross-complaint of direct attack upon the judgment in question to set aside and vacate it. It is believed that all the necessary parties are not before the court in order to make such character of distinct proceeding available, and therefore the trial court did not err in treating the pleading purely as an answer to the simple nunc pro tunc proceeding.
The appellants' plea specially set up that they were sureties on the bond of the first guardian, and that such guardian sold real estate as permanent guardian under the judgment involved in the present proceeding. Since the purchaser of the land holds his interest therein directly under the alleged judgment, he, at least, would be a necessary party to a complaint seeking to vacate and set aside such judgment and to prevent enforcement of it. All persons having connection with and that would be affected in interest by the vacation of the judgment are necessary parties and should be made parties to such direct proceeding or action. In that conclusion the question on appeal becomes one simply of whether or not there was adequate note or memorandum made of the order or judgment for which a nunc pro tunc order is sought. We think so, as held in the original opinion. That being established, there was nothing further to be determined, in view of the absence of a cross-complaint or independent action directly attacking the order or judgment under proper pleadings with all necessary parties joining therein or defendants thereto.
In a purely nunc pro tune proceeding the authority of the court is limited to the inquiry of the two things, namely: (1) Of whether an order or judgment actually made at a former term was omitted to be spread at large in the proper legal minute record of the court; and (2) of whether or not there was adequate note or memorandum made of such order or judgment. The object and purpose of such practice is simply to have such order or judgment properly exhibited of record in order to constitute legal evidence thereof. Such nunc pro tunc order only directs the ministerial act of writing the order or judgment at large upon the official book. In such proceeding, as intimated in our original opinion, the authority of the court does not exist to set aside and vacate and to prevent the enforcement of the former order or judgment, although the fault in the order or judgment is that it is wrong as a matter of law. 1 Black on Judgments, § 132; 12 A. E. Ency. Law, p. 84; 23 Cyc. pp. 843, 844; 34 C.J. p. 77; Perkins v. Dunlavy, 61 Tex. 241. Mistakes merely may be corrected. Article 2229, R.S. The nunc pro tunc proceeding distinctly as such cannot be employed to change the former order or judgment actually rendered to one which the court neither rendered nor should have rendered. In order to empower the court which rendered the order or judgment to vacate and to prevent enforcement thereof, as being rendered at a former term improvidently or without proper service or return of citation, it must be done either by way of cross-action in the nunc pro tunc proceeding, or by independent action, setting up directly the invalid proceeding relied upon. The whole proceeding them becomes one really to vacate a former judgment; and all persons affected must be present therein.
Accordingly the former order of reversal is set aside and the judgment of the trial court is affirmed, without prejudice to an Independent action by appellants to vacate the judgment.