
    A. R. Odle v. Frost, Barry & Lee.
    (Case No. 4891.)
    1. Judgment collaterally attacked.— When judgment is rendered in a cause by a court whose juiisdiction over the subject matter properly attached, and whose jurisdiction over the defendant, who was personally served with process, was not questioned, it cannot be collaterally attacked by showing that it was rendered upon illegal evidence. In such a case, no inquiry can be made into the motive of a plaintiff who credited a note on which the judgment was rendered, so as to reduce it to sum within the jurisdiction of the justice’s court which rendered the judgment.
    2. Jurisdiction. — Where jurisdiction in a cause in which judgment has been rendered appears from an inspection of the papers to have attached, it can only be attacked for improper means used to obtain jurisdiction by a direct proceeding having that object in view, or by appeal. Fleming v. Seeligson, 57 Tex., 524, followed.
    3. Levy — Directory statute. — The provisions of the statute requiring a sheriff to demand a levy of the judgment debtor against whom a moneyed judgment has been rendered, are directory, and a failure to comply with its requirements, in the absence of any fraudulent combination between the sheriff and the judgment ereditor, would not necessarily render a sale void.
    Appeal from Navarro. Tried below before the Hon. L. D. Bradley.
    On November 16, 1876, a judgment was recovered in Maury county, Tennessee, by McAlister & Wheeless against A. B. Odle, for $200.09. Afterwards Odle moved to Texas and settled in Navarro county. The Tennessee judgment not having been paid, suit was instituted on it in a justice's court of Navarro county, and on the 29th day of August, 1881, judgment was rendered in favor of McAlister & Wheeless against Odle for $270. On the Tennessee judgment was indorsed the following credit: “Credited by $1.09, November 16, 1876,” — November 16, 1876, being the date of the Tennessee judgment.
    The justice before whom the cause was tried testified that this credit was indorsed on the judgment on the day and just before the suit was filed in his court.
    Odle was cited by personal service in the case, in Navarro county, the citation showing the credit as above stated.
    The $270 for which judgment was rendered in the justice court -of Navarro county was obtained by computing interest at eight per cent, per annum on $199, as principal, from November 16, 1876 (date of the Tennessee judgment), till August 29, 1881, the date of the Navarro county judgment.
    Upon this judgment an execution was issued in 1881, and returned February, 1882, nulla bona. On March 22, 1882, an alias execution was issued upon the same judgment, which, by direction ■of appellants, was levied upon the land in controversy. In pursuance of this levy a sale was made on the first Tuesday in May, 1882, at which sale appellees purchased.
    ■ Prior to this levy and sale, the legal title .to the land was vested in O. P. Ilerr, who held it in trust for the appellant Odle. At. the request of Odle, Kerr conveyed it to J. J. Goodnight.*
    Suit had been instituted against Goodnight to cancel his deed, .and was pending when the levy and sale, under which appellants ■claim, was made.
    Under this state of facts, appellant, on November 23, 1882, instituted suit against appellees, seeking to cancel appellees’ deed.. Appellees answered by general denial and plea of not guilty, and at the trial rested their defense on two grounds: 1. That the Navarro county judgment was not void, and could not be collaterally attacked. 2. That there was an outstanding title in Goodnight.
    Judgment for defendants.
    
      Croft & Blanding, for appellant,
    cited Pasch. Dig., arts. 3957, 3958; Houze v. Houze, 16 Tex., 598; Beal v. Smith, 14 Tex., 305; Grant v. Bledsoe, 20 Tex., 456; Philips v. Lyons, 1 Tex., 391; Webster v. Reid, 11 How., 460; Graham v. Grigg, 3 Harr., 408; Bissell v. Edwards, 5 Am. Dec., 166; D’Arcy v. Ketchum, 11 How., 165; Lincoln v. Lower, 2 McLean, 473; Westerwelt v. Lewis, id., 511; Thompson v. Emmert, 4 McLean, 96; Hampton v. Bean, 4 Tex., 455; Hearne v. Cutberth, 10 Tex., 216; Tooke v. Bonds, 29 Tex., 419;. Clark v. Brown, 48 Tex., 212.
    Frost, Barry & Lee, for appellee,
    on right to acquire jurisdiction by entering a remittitur, cited Fuller v. Sparks, 39 Tex., 136-9; Duer v. Seydell, 20 Tex., 62; Graham v. Roder, 5 Tex., 146; Brown. v. Kennon. 3 Tex., 7; Austin v. Jordan, 5 Tex., 130; Ellett v. Powers, 8 Tex., 113; Sherwood v. Douthit, 6 Tex., 224; Marshall v. Taylor, 7 Tex., 235; People v. Marine Court of New York, 36 Barb., 341; Hemper v. Schneider, 17 Mo., 258; Denny v. Eckelcamp, 30’ Mo., 140; Matlock v. Lare, 32 Mo., 262; Hapgood v. Doherty, 8 Gray, 373; Pate v. Shaffer, 19 Ind., 173; Litchfield v. Daniels, 1 Col., 268; Rosenmueller v. Lampe, 89 Ill., 212, and other cases.
    On collateral attack of judgment, Allen v. Stephanes, 18 Tex., 658; Chamblee v. Tarbox, 27 Tex., 139; Pearson v. Flanagan, 52 Tex., 266; Burch v. Smith, 15 Tex., 219.
   Willie, Chief Justice.—

This suit is a collateral attack upon a judgment rendered by a justice of the peace. The principal allegations of the plaintiff’s petition are to the effect that the judgment was rendered upon insufficient evidence, and without jurisdiction of the subject matter of the suit, or of the person of the defendant in the judgment.

It is too clear for argument that the ■ evidence upon which the ■court proceeded to render the judgment could not be inquired into in this action. It was of no importance as to the jurisdiction of' the justice, when collaterally assailed, whether he gave judgment upon proof of the demand made by a certified copy from the records of a justice court in Tennessee, or upon other proof establishing the claim. If he admitted improper evidence, it was the duty of the defendant to object to it when offered, and he cannot obtain a new trial by questioning the title to land sold in execution of the judgment obtained in the suit. Haley v. Villeneuve, 11 Tex., 617; Hope v. Alley, id., 259.

Hor is there anything in the objection made to the jurisdiction of the court that the appellant was sued out of the precinct of his Residence. He was duly served with process, and if he did not appear he waived the personal privilege of being sued where he lived, and the judgment against him, under the circumstances, was legal.

As to the jurisdiction of the justice over the subject matter, the principal of the claim upon which the suit was brought was $199, within the justice’s jurisdiction. It had been $200.09, but was reduced to the above amount by a credit of $1.09, placed upon it just-before the suit was brought. The only evidence that this was done for the purpose of giving the court jurisdiction was the fact that the credit was entered just before the claim was handed to the justice for suit, and the statement of appellant that he had not paid anything on the claim, or authorized a credit upon it. This latter might have been true, and yet the payment made for him by another. But had the money never been paid by any one, it cannot be doubted that the owner of a debt may admit a payment of it,, either of principal or interest, which will prevent him from ever after claiming the amount credited. Tooke v. Bonds, 29 Tex., 419.

Whether the creditor can, by giving such credit, bring the claim within the jurisdiction of the justice, where it otherwise would not be, is not a question in the case, though it may be added that it has been decided in the affirmative in this state. Fuller v. Sparks, 39. Tex., 138.

The court having the undoubted right to take cognizance of a claim reduced to $199 by a payment, the object of the plaintiff in giving the credit cannot be questioned collaterally. The debt on its face appears to be within the justice’s jurisdiction. Ho other court could take original cognizance of it. If the jurisdiction apparent on the face of the proceedings can be defeated for the improper manner of obtaining it, it must be by a direct proceeding in the way of an appeal, or to set aside the judgment, as in case of judgments voidable and not void, and not in the collateral manner pursued by the appellant. Fleming v. Seeligson, 57 Tex., 524.

The inadequacy of the price for which the land sold was not sufficient to set aside the sale. Ho fraud in making the sale was-shown, but the smallness of the price was caused by doubt as to appellant’s title, he having previously sold the land to Goodnight. Allen v. Stephanes, 18 Tex., 658.

As to the ruling of the court admitting in evidence the deed from Kerr to Goodnight, it cannot be noticed because the bill of exceptions does not state the objections which were made to the admission of the instrument. Besides, the court rendered judgment for appellee on the points we have discussed above, without taking the deéd into consideration, and the evidence outside of the deed was sufficient to justify its decision.

Affirmed.

[Opinion delivered May 25, 1883.]

On Motion for Behearing.

In the motion for rehearing filed in this cause it is urged that our decision rendered a few days since overrules Hampton v. Dean, 1 Tex., 455; Ilearne v. Outberth, 10 -Tex., 216; Tooke v. Bonds, 29 Tex., 419, and Clark v. Brown, 48 Tex., 212. On the contrary these are the strongest authorities by which the decision is sustained. The first two cases and the last hold that payments upon a debt must be applied first to the extinguishment of the interest and then to the principal; the case of Tooke v. Bonds decides that a creditor may, if he chooses, apply them first to the reduction of the principal. The payment in this case purports to have been made on the day when the Tennessee judgment was rendered, at a time when no interest had accrued, and hence there was nothing to apply it to except principal. Thus applied, the claim was clearly within the justice’s jurisdiction. Hpon the face of the proceedings in the justice’s court, therefore, there is nothing to show that the judgment was rendered for an amount not within the jurisdiction of that court.

The error into which the appellant has fallen is that he can, in making a collateral attack upon the judgment, retry the original case and set up defenses and make proof that he should have made in the suit in which the judgment was obtained. We do not say that even had the evidence introduced in this suit been produced in the case of McAllister & Wheel ess v. Odie, in-which the judgment complained of was obtained, it would have shown that the justice could not take cognizance of the cause, for there ivas no sufficient proof that the Tennessee judgment was not entitled to a credit of $1.09 on the day of its rendition. But we do hold that the appellant, having been duly served in that cause, and having failed to defend it, or to take an appeal to the county court, cannot get a trial de novo in a collateral attack upon the judgment rendered therein. And this more especially, when, as in this case, he seeks such new trial without making the plaintiffs in the original judgment parties to the proceedings.

Had the McAllister and Wheeless case reached the court of final resort upon appeal, in the same condition pf record as was intro-duped upon the trial of this cause, the judgment of the justice would certainly have been affirmed; for the court would have held that there was nothing on .the face of the proceedings to deprive the justice of jurisdiction. The appellant is not certainly entitled to greater latitude in a collateral attack than he would be upon a direct proceeding to reverse or annul the judgment.

As to the failure of the sheriff to demand a levy of the appellant before proceeding to sell the land, this court has held the provisions of the statute in such respects directory (Pearson v. Flanagan, 52 Tex., 280), and that the failure to comply with its requirements would not necessarily render the sale void.

If it had been shown that this failure was the result of a fraudulent combination between the sheriff and the plaintiff in execution, the case might have been different. But so far from this being the case, it was shown that the appellant had placed his property, including the land in controversy, in the name of another, and a previous execution upon the same judgment had been returned no property found. It was not proved that if the sheriff had demanded of the appellant a levy, he could have pointed out other property subject to execution. When placed upon the witness stand, appellant stated that he had horse property under his control which he might have pointed out for levy. Having property under one’s control and owning it are two different things; and there is no proof as to the amount or value of such property, or that it was not exempt from execution. In fact, there was nothing in this question which demanded our attention, and hence it was not noticed in the opinion.

The motion for rehearing is overruled. •

Motioh overruled.

[Opinion delivered June 19, 1883.]  