Easley v. McClinton

Citations

• 33 Tex. 288

Syllabus

<p>1. Courts of probate being of special and limited jurisdiction, and created by local laws, there is no presumption of law to sustain their judgments and decrees, and their records must show an explicit and special finding of all material facts necessary to their jurisdiction and to the validity of their findings.</p> <p>2. In a suit in our courts upon a judgment of another State, rendered in an action in personam, the defendant may prove that in such action no process was served upon him, notwithstanding that the record shows - . proper process duly returned “ executed ” upon him ; and if such proof be made by the defendant, the suit cannot be maintained. (Norwood v. Cobb, 15 Texas, 500, cited and approved.)</p> <p>3. If' the record of a judgment shows that it was rendered without service of process and without an appearance of the defendant, or if that fact can be shown without contradicting the recitals of the record, the judgment ' will be treated as void in any other State, notwithstanding the constitutional provision respecting the faith and credit to be given to the judgments of the several States.</p> <p>4. The record of a void judgment cannot be made to serve as evidence of collateral facts, for such a record does not import verity.</p> <p>5. When a party is to be pursued in this State for defalcation, or waste of an estate administered by him in some other State, the proper course is to institute suit on his bond, alleging breach and all necessary facts— upon proving which there need be no difficulty in recovering judgment. But a judgment ot a probate court of the other State, rendered against him upon publication only, will not suffice either 'as a cause of action, or ns .evidence of .the breach of' his bind.</p>