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13 Tex. Civ. App. 204

35 S.W 838

Moore v. Perry Et Ux

Court of Appeals of Texas

Decided April 30, 1896

Court of Appeals of Texas · decided 1896-04-30

<p>1. Judgment — Bill of Review Will Not Lie, When.</p> <p>A bill of review to revise a judgment for errors apparent upon the face of the record is not recognized in this State, the remedy being-by appeal or writ of error.</p> <p>.2. Same — Action to Set Aside Judgment — Collateral Attack.</p> <p>An action to set aside a judgment and sheriff’s sale thereunder for errors apparent upon the face of the record, will not lie; but if the errors are such as to render the judgment void as against collateral attack, such action may be maintained as a suit to recover the property.</p> <p>3. Same — Citation Without Seal.</p> <p>The want of a seal to the citation is a defect which is amendable, and will not render a judgment by default thereon void as against collateral attack.</p> <p>4. Same — Recitals of Service in Judgment.</p> <p>The recital in a judgment that the defendants were duly and legally cited to appear and answer, as against a collateral attack on the judgment, is conclusive on the defendants, and precludes them from disputing the validity of the citation for want of a seal.</p> <p>5. Same — Judgment by Default Upon Petition Subject to General Demurrer.</p> <p>A judgment by default is not void and subject to collateral attack because the petition upon which it was rendered was subject to general demurrer, where the court had jurisdiction of the subject matter, and such petition sets forth facts sufficient to challenge the attention of the court with regard to its merits.</p> <p>6. Same — Misnomer.</p> <p>Where suit is brought on a street improvement certificate, the judgment therein will not be held void on collateral attack, because the copy of the certificate sued on recited that John and Lucy Perry were the owners of the property affected, if the petition clearly alleged such ownership and liability on the certificate in the defendants, John and Lucy Perry, the owners in fact, and against whom the judgment was rendered.</p> <p>7. Execution Sale — Inadequacy of Price.</p> <p>Improved city property worth $4000, but subject to a vendor’s lien of $900, was sold under execution for $375. Held, that the sale would not be held void because of such inadequacy of price, where no irregularities in making the sale were shown.</p> <p>8. Same — Order of Sale — Lots to be Sold Separately.</p> <p>Article 2305, Revised Statutes (1879), relating to executions, and providing that if real property in any town- or city taken in execution consists of several lots, each shall be offered by the sheriff for sale separately, if susceptible of a separate sale by reason of the character of improvements thereon, applies also to an order of sale issued upon a judgment in an action on a street improvement certificate, and the sale thereunder should be made accordingly.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1896-04-30

How this case has been cited

Cited by 27 later decisions — most recently June 1955 · most notably Moore v. Miller (1913), Waller v. Skelton (1948)

27 state decisions

801896190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 OX MOTION FOR REHEARING.

GARRETT, Chief Justice.

¶2 — Upon consideration of this case we see no cause to change our views with regard to the questions which we held entitled the appellants to a reversal of the judgment, but have concluded that there are sufficient allegations in the petition, supported by enough evidence, to entitle the plaintiffs to have the cause remanded, so that they may have the sale set aside, if they can, since it appears that the court below rendered judgment in favor of plaintiffs on other grounds, for which reason the issue with regard to the sheriff’s sale may not have been developed as fully as perhaps might have been done. The petition in this respect is deficient, but it shows that the lien was foreclosed on four several lots of land worth $4000, and contains allegations that one-half of the lot, on which no improvements were, could have been sold, and would have brought more than the judgment against the lots and all costs. Plaintiffs averred that they had tendered the money paid on the bid back to the purchaser, submitted themselves to the court, and asked that the sale be set aside. There was evidence e that the four lots were worth about $600" each, and the improvements thereon were worth $1500 or $1600. There was alien thereon for $900. The amount of the bid was $3'75. While it does not so appear clearly, yet the evidence warrants the conclusion that the improvements on the lots did not cover all of them, and that one or more" of them could have *212 been sold separately. This fact was overlooked by the court when the-case was decided. The statute regulating execution sales provides that if real property situated in any town or city, taken in execution, consists of several lots, each shall be offered by the sheriff for sale separately, if susceptible of a separate sale by reason of the character of improvements thereon. Revised Statutes (1879), art. 2305.' An order of sale is an execution. Article 2281. While some of the articles under the title, “Execution,” will not apply to an order of sale, yet the article under consideration and a number of others do. From the evidence that it was the duty of the sheriff to have sold the property in accordance with the article of the Revised Statutes above cited, by offering for sale one lot at a time, we have concluded, therefore, that the motion for a rehearing should be granted so far as to remand the cause for another trial. Motion granted.

¶3 Reversed and remanded.

¶4 Delivered April 30, 1896.

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