head of cattle, alleged to have been his cattle and to have been converted by the bank. The answer was a general denial. The cause was tried by the judge, who filed his conclusions of fact and of law, and rendered judgment for plaintiff for 50 head of cattle at the rate of $12.50 per head, with interest from May 1, 1903. The first assignment is that the court erred in the seventh paragraph of his findings of fact, where he finds that the bank took from plaintiff the possession, dominion, and control of his cattle, and declined to allow plaintiff to control his property. The sixth assignment is that the court erred in rendering judgment in favor of plaintiff, for the reason that plaintiff failed to establish a case of conversion on the part of defendant of his cattle. The third is the court erred in finding that the bank, though ostensibly and apparently acting in the name of A. B. Dockery, the mortgagor of said cattle, etc., was doing so to benefit itself.

There was ample testimony to establish that A. B. Dockery, plaintiff's father, had mortgaged to the bank his own and plaintiff's brands of cattle; that A. B. Dockery had left the county on account of his health, was insolvent, and had left the cattle under no management at all; that in these circumstances the bank assumed the management of the Uvalde and Zavalla pastures, and of the cattle, placing a man or men of its selection in charge of them, and defrayed the expenses, charging same to A. B. Dockery. As A. B. Dockery was gone in March, it is reasonable to conclude that the bank assumed control of the stock in his pastures about that time. This appears to have been done with his consent. The bank in this matter simply looked after the cattle, including plaintiff's, and was not by that action alone guilty of any conversion. In fact, plaintiff does not contend that any act in the nature of a conversion of his cattle took place until in May. The testimony shows that about May 9th the bank had Cardwell, its man in charge, gather such of the cattle as were in condition for market, some of which were shipped and some sold, the bank receiving the proceeds and applying it to A. B. Dockery's indebtedness. The plaintiff, James Dockery, had some time previously notified the bank of his ownership of the cattle in a certain recorded brand, and he was present when the cattle were gathered, and he objected to his cattle being taken, and told Cardwell not to ship them; but Cardwell told him he had instructions from the bank to gather everything that was fat, and he would have to take them; that he would take them on to town, then he (plaintiff) could see the bank about it. He accordingly took them to town and reported to the bank what plaintiff had said, and they told him they had mortgage on them and could not let them go. It seems that plaintiff on this occasion again notified the bank that the cattle in that certain brand were his, and demanded that the

bank direct its man to turn them over to him, but it refused to do so. It appears also that on this occasion the bank forbade plaintiff's handling any of his cattle, and told him they did not know they were his cattle, but he must not handle them, and to let them alone, that the bank had a mortgage on them. It seems that previously, in January, when plaintiff discovered that his father had included his brand in the mortgage, he informed the bank that his cattle in that brand were his, and was told that the bank had a mortgage on them and would have to hold them. The effect of the testimony is that the bank at this time, as for some time previous. through its agents, were in possession and control of the pastures and the cattle therein, and its prohibition against plaintiff's handling any of his cattle, when plaintiff asserted his right and asked that it respect his right to those that were brought to Uvalde, amounted to a conversion of all his cattle. The fact that what the bank did was with the concurrence or direction of A. B. Dockery, and the fact that the expenses of the men employed and the means used in managing, handling, marketing, etc., were charged by the bank to him, make no difference in the result in legal contemplation, as in fact the cattle were turned over by him to the bank to be applied by it to his indebtedness. The position that the possession remained in A. B. Dockery, the bank really acting for him, and hence, never having had possession for itself, the bank could not have been guilty of conversion, cannot be sustained. A person obviously did not have to have a legal title, or legal possession of property, in order to be guilty of conversion thereof. If the cattle belonged to plaintiff, and they were lawfully in A. B. Dockery's possession, as they appear to have been, the latter committed a wrongful act in mortgaging them for his own debt without plaintiff's authority, and his mortgagee, as well as he, would be guilty of conversion if they acted in concert in disposing of such property, or in excluding plaintiff from exercising his rights of ownership in respect to them. We think there was no error in the findings referred to in the above assignments.

The seventh assignment presents the substance of the second, fourth, and fifth. It is as follows: "The court erred in rendering judgment for plaintiff for the sum of $625, with interest from May 1, 1903, at 6 per cent. per annum, for the reason that, if defendant converted any cattle belonging to plaintiff, the evidence fails to show a conversion of 50 head of cattle by defendant." The conversion was alleged to have occurred on May 9, 1903. The evidence supports the finding of conversion of all the cattle in plaintiff's brand. The value of these cattle was fixed by the evidence and by the court's finding at $12.50 per head. Defendant is liable to plaintiff for what cattle the latter had in the pastures at that date, but the burden of

proof was on plaintiff to establish the number there at that time.

The finding that these numbered 50 head is not in accordance with the evidence. Plaintiff testified that he quit his father's ranch in September, 1902, and that he then had 50 head in his brand. He went to the town of Uvalde to work, but after that visited the pastures frequently, especially on Sundays, and saw his cattle there; that the season was good in the fall and winter of 1902 and 1903, and no cattle died in these pastures. In a general way plaintiff also stated that in March, 1903, he was the owner of these 50 head of cattle. This testimony was not directed to the month of May, but, if it were all the testimony in the record on the subject, it might be said from it that the probability was that that number remained there on May 9th. It might have afforded presumptive evidence of that fact. But presumptions are not indulged where there is testimony. The witness Cardwell testified in effect that, of the cattle which were taken to Uvalde on the occasion above mentioned, he shipped five head in plaintiff's brand, and sold to Stroman six or seven head, which disposed of all of them. Lott, who took Stroman's trade off his hands, said there were five or six in that brand. Plaintiff himself confirms this testimony thus: "Mr. Cardwell brought to Uvalde and shipped about six head of my cattle. I afterwards saw four or five of my cows and calves in the bunch they sold to Mr. Lott." So it clearly appears that in that entire lot of cattle plaintiff had not over 12 head. Cardwell testified that he gathered all the cattle in both the Uvalde and the Zavalla pastures, shipped 5 head, sold the she cattle to Stroman, and cut out the steers and placed them in the Zavalla county pasture; that there were between 20 and 25 head in plaintiff's brand. He also stated that he shipped five head, sold Stroman six or seven, and that there were left on the range six or seven bead; that the bank looks to him to gather the remnant for it. King testified that he had charge of the Zavalla county pasture, that there are there about 100 head of steers and a small remnant of stock cattle, and that there are among the steers in plaintiff's brand about 5 or 6 head, and that originally there were in that pasture in said brand some 15 or 20 head. His testimony referred to the Zavalla pasture. All these witnesses were placed on the stand by the plaintiff to prove his case, and this is the only direct testimony there was as to the number of eattle in plaintiff's brand in those pastures at the time of the conversion.

When we bear in mind that it devolved on plaintiff to show the number he had in the pastures when the bank appropriated to itself the cattle therein, to wit, on May 9, 1903, it cannot be said that he has made it appear that he had at that time more than 25 head, which is the greatest estimate or approximation men

JUDGMENT CITATION OMISSION OF SEAL-JURISDICTION-COLLATERAL ATTACK.

1. In an action of debt on a judgment by default, an attack on the judgment on the ground that the citation omitted the seal of the court, and that therefore there was no jurisdiction of the person of the defendant, is collateral.

2. The omission of the seal of the court from a citation is ground only for a direct attack on a judgment founded thereon, and hence, in an action of debt on such judgment, the objec tion is not available.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by S. H. Newman against Hugh J. Mackey. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

M. W. Stanton, for appellant. Dean, Bowden & Bryan, for appellee.

NEILL, J. This is an action of debt brought by appellant against the appellee on the judgment described in our conclusions of fact. As a defense, appellee (defendant below) pleaded that the citation served upon him in the case wherein the judgment sued upon was obtained did not have affixed thereto the seal of the district court of El Paso county, and was therefore void, and the district court had no jurisdiction to render such judgment, and that the same is for that reason likewise void. As the question raised by this part of the answer is, in our opinion, the only one necessary to a decision of this case, we deem it unneces sary to state any other matters pleaded by either party. The case was tried by the court without a jury, and the trial resulted in a judgment in favor of the defendant.

The facts found by the trial judge, necessary to a decision of this question, are as follows:

"(1) That on the 11th day of January, A. D. 1893, at the January term of the district court of El Paso county, Texas, in the case of S. H. Newman, Plaintiff, v. Hugh J. Mackey, Defendant (No. 1,726), the plaintiff, S. H. Newman, recovered a judgment by default against the said defendant, where in it appears that the plaintiff appeared by his attorney, J. W. Wright, and, as recited in said judgment, 'the defendant comes neither in person nor by attorney, though heretofore duly and legally served with the citation herein, but wholly makes default,'

Rehearing denied November 23, 1904.

default

and plaintiff thereupon asked against defendant for want of appearance and answer therein, and the same was entered against the defendant, Hugh J. Mackey; and on the same day the court proceeded to hear the evidence adduced by the plaintiff in said cause, and, being fully advised in the premises, found that the defendant, Hugh J. Mackey, was indebted to the plaintiff, S. H. Newman, in the sum of $819.97, and it was by the court decreed, in the usual form, that the said plaintiff have and recover of and from the defendant the sum of $819.97, together with interest thereon from the date of said judgment at the rate of 12% per annum, for which execution was awarded, and it was further ordered that the plaintiff take nothing on his claim for attorney's fees, and that execution issue against the parties, respectively, for the costs incurred by them. A true copy of said judgment is annexed to plaintiff's first amended original petition, marked 'Exhibit A,' and made a part thereof, and reference is made thereto for same.

"(2) That on the 26th day of October, A. D. 1892, the petition in said cause No. 1,726 in the district court of El Paso county, Texas, was filed in said cause, and on November 1, 1892, a citation was issued in said cause, in the usual form, addressed to Hugh J. Mackey, requiring him to appear before said district court at the next regular term thereof, to be holden at the courthouse in the city of El Paso on the first Monday in January, A. D. 1893, then and there to answer the plaintiff's petition filed in a suit in said court on the 26th day of October, 1892, wherein S. H. Newman was plaintiff, and Hugh J. Mackey was defendant, and that the file number of said suit was 1,720; and said citation further stated that the nature of plaintiff's demand is as follows, to wit, 'Suit on a certain promissory note of date December 20, 1888,' without further statement; and the said citation required the sheriff to deliver to the said defendant, Hugh J. Mackey, in person, a true copy of said citation, and to make his return showing how the same was executed, and the said citation was dated and attested as follows:

"Given under my hand and the seal of said court at office in El Paso, Texas, this the 1st day of November, A. D. 1892. Attest: J. A. Escajeda, Clerk District Court El Paso County, Texas, by J. Marr, Deputy.' "But no seal of said court, or of any kind, was affixed or attached to said citation, and on the back thereof was indorsed:

"File No. 1,726. District Court of El Paso County, Texas, January Term, 1893. S. H. Newman v. Hugh J. Mackey. Citation. Issued 1st November, 1893. J. A. Escajeda, Clerk District Court, by J. Marr, Deputy.

"Filed 3rd day of January, 1893, J. A. Escajeda, Clerk, by Deputy.'

"That, as shown by the sheriff's return thereon, the same came to the hands of the sheriff of El Paso county, Texas, on the 1st day of November, A. D. 1892, at 8 o'clock p. m., and was executed the 2d day of November, A. D. 1892, by delivering to Hugh J. Mackey, the within-named defendant, in person, a true copy of this writ, and said return is signed by H. R. Hillebrand, sheriff of El Paso county, Texas.

"(3) That the petition was filed in said cause No. 1,726, of S. H. Newman, plaintiff, against Hugh J. Mackey, on the 26th day of October, 1892, by the clerk of the district court of El Paso county, Texas, and is on a note for $559-said note bearing date December 20, 1888-alleged to have been exe cuted by defendant to plaintiff, bearing interest at the rate of 12% per annum, providing for 10% attorney's fees, and alleged to have been transferred by plaintiff to Byron Sherman; and said petition also shows said note was protested, and claims protest fees of $5.50, and contains a prayer for judg ment for said debt, costs, and general relief; and to the petition is attached a copy of the note, with indorsements. A true copy of said petition, with said note and indorsements, are set out in the second subdivision of the fourth paragraph of plaintiff's first supplemental petition, reference to which is here made for same.

"(4) That the note sued upon in the original cause, No. 1,726, bears date December 20, 1888, is for the sum of $559, due 90 days after date, waives grace and protest, and purports to have been executed for value received, and has the name 'Hugh J. Mackey' (or 'G.') signed thereto, and is payable to S. H. Newman, and provides for 12% per annum interest, together with all costs and expenses incurred, and attorney's fees of 10%, should judicial proceedings be used for collection. Said note is indorsed by S. H. Newman, and made payable to Byron Sherman, and is indorsed for collection by Byron Sherman, but said indorsements have all been erased. That said note was protested in due form on the 21st day of March, 1889, by William Crosby, notary public of El Paso county, Texas, and said protest was made for nonpayment.

"(5) That an execution was issued on the 19th day of June, 1894, by the clerk of the district court of El Paso county, Texas, upon the said judgment in cause No. 1,726; but it incorrectly recites that said judgment was recovered on the 11th day of January, 1894, instead of the 11th day of January, 1893. The execution is in the usual form, with certified cost bill, showing costs amounting to the sum of $7.75. The return on said execution shows that the same came to the hands of the sheriff on the 19th day of June, 1894, and was returned on the 10th day of August, 1894, nulla bona, by F. B. Simmons, sheriff of said county."

These facts are established by the undis

puted testimony. Upon these facts the trial judge concludes, as a matter of law, that the paper designated as a citation in cause No. 1,726 was absolutely void, and that the district court of El Paso county, Tex., acquired no jurisdiction over the person of the defendant, Hugh J. Mackey, in said cause, and that the judgment therein rendered, which is the one here sued on, was therefore void.

As before intimated, the only question necessary for us to decide is the correctness of this conclusion. If this conclusion be correct, it is needless for us to enter upon a consideration of the vexed question as to what constitutes a direct or collateral attack on a judgment, either domestic or foreign, for, if a judgment is void, it is, in legal effect, no judgment at all. It is a mere brutum fulmen, by which no rights are divested, and from which none can be obtained. It neither binds nor bars any one. All acts performed under it and claims flowing out of it are void. It is good nowhere, and is bad everywhere. It can be attacked directly or collaterally, or in any other way, by anybody and everybody. Fre. on Judg. § 117; Grabam v. East Texas, etc., Co. (Tex. Civ. App.) 50 S. W. 579, and authority cited; Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398. Α direct attack on a judicial proceeding is an attempt to avoid or correct it in some manner provided by law. Vanf. Col. At. § 2. Or in other words, as is said by the Supreme Court in Crawford v. McDonald, 88 Tex. 630, 33 S. W. 327, "a direct attack on a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of same in a proceeding instituted for that purpose, such as a motion for a rehearing, an appeal, some form of writ of error, a bill of review, an injunction to restrain its execution, etc. A collateral attack on a judgment is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes aforesaid, as where, in an action of debt on a judgment, defendant attempts to deny the fact of indebtedness, or where, in a suit to try the title to property, a judgment is offered as a link in the chain of title, and the adverse party attempts to avoid its effect," etc. It would seem from these definitions that the ground upon which the judgment sued upon is questioned is one for a direct attack, and that the attack made is collateral. "In order to make a judgment void collaterally, either (1) a legal organization of the tribunal, or (2) jurisdiction over the subject-matter, or (3) jurisdiction over the person, must be wanting; or (4) one or more of these matters must have been lost after it once existed. When either of these defects can be shown, the judgment, and all rights and titles founded thereon, are void, even in the hands of a bona fide purchaser." It is not questioned that all of these matters, except the third, are present in the judgment sued upon. The question then is, is it ap83 S.W.-3

parent from the facts found by the trial judge respecting the record in the case in which the judgment was rendered that jurisdiction over the person of the defendant therein was wanting?

It has been seen that the validity of the judgment sued on is questioned upon the ground that the seal of the court was not affixed to the citation served on the defendant in that case. The true rule concerning process and service, collaterally, both at law and in equity, is that if information be given sufficient to warn defendant that a judicial proceeding is pending against him in a particular court, and the proof of service is sufficient for the court to infer that he has such information, the proceeding by default will not be void. Vanf. Col. At. §§ 329, 347. Upon the face of the citation, the validity of which is questioned, appear all the essential requisites of completeness, except the seal of the court. The information given defendant was as full as it would have been, had the seal been affixed. He was warned that a judicial proceeding was pending against him in the district court of El Paso county, of the date the petition was filed, the file number of the suit, the names of all the parties, and the nature of plaintiff's demand. If he required further information to make his defense, to obtain such information he had only to step into the clerk's office, where the petition was on file, and see and read it. "But there is none so blind as those who will not see." It is true the citation was defective. And the defendant could have appeared and taken advantage of it, in limine, by motion to quash, or he might, upon appeal or writ of error, have obtained a reversal of the judgment rendered by default. Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655; Burleson v. Henderson, 4 Tex. 49; Imlay v. Brewster, 3 Tex. Civ. App. 103, 22 S. W. 226. But the omission of a seal from a citation does not make the proceedings in which the judgment was obtained void. Crane v. Blum, 56 Tex. 325; Krug v. Davis, 85 Ind. 309; Moore v. Perry, 13 Tex. Civ. App. 210, 35 S. W. 840. In the case last cited it is said by Chief Justice Garrett: "Plaintiffs herein had no notice of the suit against them, and, as they were served only with a copy of citation, which did not contain the seal of the court, they were not aware that service on them was ever defective. Although the citation was issued without the seal of the court, it was defective only, and was sufficient to bring defendants into court; and the judgment by default was not void, but was conclusive against the defendants, and could have been set aside and reversed only on appeal or writ of error." That case was before the court on a bill of review to set aside a judgment rendered against the plaintiffs therein, in a suit wherein they were defendants, upon the ground that the seal of the court was not affixed to the citation, a copy of which was served on them in

the case. And it seems to us that the decision is conclusive of the question under consideration. For the rule is well settled that, in an action on a judgment, no defense is admissible which relates to matters rendering the judgment defective, erroneous, or voidable, but only such as render it void. Taylor v. Harris, 21 Tex. 438; Nichols v. Dibrell, 61 Tex. 541. See note to Frierson .v. Harris' Heirs, 94 Am. Dec., Attachment, page 239-last paragraph on the page.

Thus it is clearly demonstrated that the omission of the seal from the citation did not render the judgment sued on void, and that the trial court erred in entertaining the defense, and in holding that because of such omission the judgment is a nullity. The attack made on it upon the ground stated cannot be considered direct, but must be deemed collateral, and therefore not available in this action.

Therefore, the facts being undisputed, the judgment of the district court is reversed and set aside, and judgment is here rendered in favor of appellant for the amount due on the judgment, principal and interest.

2. Where, in an action for wrongful attachment against a constable, the sureties on his official bond, the attaching creditor, and the sureties on the constable's indemnity bond, judgment was rendered against all the defendants, and plaintiff was not entitled to recover against the sureties on the indemnity bond, the judg ment would be affirmed on appeal as to the defendants other than the sureties on such bond, and the cause dismissed as to them.

Appeal from Delta County Court; J. F. Holmes, Judge.

Action by S. B. Sisk against W. H. Unsell and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed on rehearing as to defendant Unsell and his official bondsmen, and defendants A. & J. Katz & Co., and dismissed as to defendants J. A. Smith and another.

J. L. Young, for appellants. Newman Phillips and L. L. Wood, for appellee.

RAINEY, C. J. Appellee sued appellant Unsell, as constable, and the sureties on his official bond; also A. & J. Katz & Co., J. A. Smith, and Arthur Darvin on an indemnity bond executed and delivered to said Unsell to indemnify him against loss for the levy of

a writ of attachment issued in a suit of Katz & Co. against Davis & Bruce. The writ of attachment was levied on property claimed by appellee. The suit is for damages alleged to have accrued to appellee by the wrongful seizure of plaintiff's property. Upon trial, judgment was rendered against all of the defendants.

Exceptions were filed to the petition, which were overruled, and the contention is made here that suit was predicated in part upon the bond of indemnity, when no recovery could be had by plaintiff on said bond. We sustain this contention. In the petition the bond is declared on, and a recovery sought thereon. No allegations are made that said levy was induced by the giving of said bond. Plaintiff had no right of action on said bond. His action was against the makers thereof, by reason of its making inducing the levy, thereby rendering the makers trespassers. In the case of Cabell v. Shoe Co., 81 Tex. 104, 16 S. W. 811, where the United States marshal and his indemnitors were sued, Chief Justice Stayton said, "The liability of the indemnitors to the marshal is upon their bond, but their liability to the persons whose property was seized is that of trespassers," and this is the holding of other decisions of our state.

For the reason that the allegations of plaintiff's petition seek to hold the indemnitors liable, without showing that the levy was induced thereby, and the court having overruled exceptions thereto, the judgment is reversed and cause remanded.

On Rehearing.

(Nov. 19, 1904.)

The appellee, in motion for rehearing, asks that we affirm the judgment as to appellants Unsell and official sureties and Katz & Co., and reverse and dismiss as to sureties on the indemnity bond. We see no reason why this should not be done. There is no error shown as to Unsell and official bondsmen and Katz & Co. The error in the judgment is as to the sureties on the indemnity bond. They were made parties by the appellee, and no recovery was sought against them by Unsell, and a reversal and dismissal as to them in no way affects the other appellants.

The motion for rehearing is granted, and the judgment is affirmed as to Unsell and his official bondsmen and Katz & Co., and reversed and cause dismissed as to the sureties on the bond of indemnity.

INTERNATIONAL & G. N. R. CO. v. McVEY et al.

(Court of Civil Appeals of Texas. Nov. 23. 1904.)

MASTER-DEATH OF SERVANT-MEASURE OF DAM

AGES-INSTRUCTION-APPEAL.

1. In an action by the widow and children of a railroad employé for his death through de