Perdew v. Davis

31 Tex. 488

• Court: Texas Supreme Court
• Decided: October 15, 1868
• Status: Published

Opinion

Morrill, C. J.

—Both parties claimed under the same grant to Davis, and Perdew claimed by sheriff’s deed, based on a judgment entitled Davis v. Davis.

It seems that after the judgment of Davis v. Davis was rendered, being 13th April, 1855, it was discovered that the service was defective, whereupon, at a court held in February, 1861, being six years after the case had been decided and gone off the docket, on motion, the court ordered the sheriff to amend his return, which was done. On the 15th day of August, 1866, being five years after the amendment of the return and eleven years after the judgment rendered, there was a second judgment rendered, dismissing the suit of Davis v. Davis, at the cost of plaintiff.

Such proceedings might excite some risibility were it not of so grave and serious a character. The service, as it appeared in the case at the time of the rendition of the judgment, was, if legal, (being by publication,) constructive only. If not legal it would be a nullity, and a judgment rendered without notice is void. After the court had rendered the judgment, and the term of the court had passed, it had no further jurisdiction thereof, except what related to the final process on the judgment. But as all final process based on this void judgment was equally void, the purchaser, at a sale on execution, got nothing but a void title. The judgment is

Affirmed.