Herrington v. Williams

Citations

• 31 Tex. 448

Syllabus

<p>The plaintiff has the right to make all persons interested in the subject-matter of the suit parties, whether they be residents or non-residents. But where one' of the defendants, as administrator and heir, had conveyed all his interest in the land and set up no claim to it, he was improperly joined as a defendant.</p> <p>And if the object was to call upon him to avouch and make good the title sold, or else to answer for the purchase-money received by him as administrator, then the mere publication against him was no sufficient service.</p> <p>No personal judgment can be rendered against a non-resident without actual personal service of the citation or writ upon the party. In order to acquire jurisdiction through the property, where the party is non-resident or absent from the state, there are certain essential prerequisites -prescribed by statute to be performed before the jurisdiction actually attaches, so as to authorize an adjudication of the court upon the rights of parties. There must be an affidavit made, bond and security given to the absent party, the impetration of the writ of attachment, and its actual levy and return by the ministerial officer of the court, before the jurisdiction attaches in a proceeding in rem.</p> <p>Where none of these requirements had been complied with, no valid judgment could have been rendered either against the land or the person of the administrator and heir. He was in no proper slnse a party to the litigation, actually or constructively.</p> <p>Where B. was in possession of the land sued for, holding under deed, but the legal title was in W., who resided in a different county, the suit was properly brought in the county where the land was situated, and the plaintiff had the right to join W., so as to obtain specific performance against him should he recover against B. And where W. disclaimed all interest and expressed his willingness to convey to whomsoever the best equity belonged, the sufficiency of the service becomes an