The provisions in the Revised Statutes of Texas, Articles
1242-1245, which, as construed by the highest court of the state,
convert an appearance by a defendant for the sole purpose of
questioning the jurisdiction of the court into a general appearance
and submission to the jurisdiction of the court do not violate the
provision in the Fourteenth Amendment to the Constitution which
forbids a state to deprive any person of life, liberty or property
without due process of law.
On the 14th day of November, 1888, a personal judgment was
rendered in the district court of Travis County, Texas,
Page 137 U. S. 16
against the plaintiff in error, which judgment was subsequently
affirmed by the supreme court of the state. Error is now alleged in
this, that the district court had no jurisdiction of the person of
the defendant. The record discloses that on October 20, 1885, the
defendant leased from the state certain school lands at a
stipulated rental. The lease provided that in all suits thereunder,
the venue should be laid in Travis County, Texas. The state filed
its petition on February 15, 1888, alleging nonpayment of the rent
due in 1886 and 1887. The defendant being a nonresident, a citizen
of St. Louis, Missouri, a notice in accordance with the provisions
of the statute was served upon him personally in that city. No
question is made but that the service was in strict conformity with
the letter of the statute. On March 9, 1888, the defendant appeared
by his counsel and filed a special plea challenging the
jurisdiction of the court on the ground that he was a nonresident
and had not been served personally with process within the limits
of the state. This plea was overruled. Thereafter, and on the 5th
day of October, 1888, the defendant appeared by his attorneys in
open court, demanded a jury, paid the jury fee, and had the cause
transferred to the jury docket. On the 6th day of October, he again
filed a plea to the jurisdiction on the same ground, which was also
overruled. On the 14th day of November, when the cause was reached
and called for trial, he again appeared by his attorneys, waived
his right of trial by a jury and his demand of a jury, and declined
to further answer to the cause, relying solely upon his plea to the
jurisdiction. The court thereupon proceeded to render judgment
against him, which, as heretofore stated, was affirmed by the
supreme court.
Page 137 U. S. 19
MR. JUSTICE BREWER, after stating the case as above reported,
delivered the opinion of the Court.
It was conceded by the district and the supreme courts that the
service upon the defendant in St. Louis was a nullity, and gave the
district court no jurisdiction, but it was held that under the
peculiar statutes of the State of Texas, the appearance for the
purpose of pleading to the jurisdiction was a voluntary appearance,
which brought the defendant into court. Plaintiff in error
questions this construction of the Texas statutes, but inasmuch as
the supreme court, the highest court of the state, has so construed
them, such construction must be accepted here as correct, and the
only question we can consider is as to the power of the state in
respect thereto. It must be conceded that such statutes contravene
the established
Page 137 U. S. 20
rule elsewhere, a rule which also obtained in Texas at an
earlier day, to-wit, that an appearance which, as expressed, is
solely to challenge the jurisdiction is not a general appearance in
the cause, and does not waive the illegality of the service or
submit the party to the jurisdiction of the court.
Harkness v.
Hyde, 98 U. S. 476;
Raquet v. Nixon, Dallam 386;
Dewitt v. Monroe, 20
Tex. 289;
Hagood v. Dial, 43 Tex. 626;
Robinson v.
Schmidt, 48 Tex. 19.
The difference between the present rule in Texas and elsewhere
is simply this: elsewhere the defendant may obtain the judgment of
the court upon the sufficiency of the service without submitting
himself to its jurisdiction; in Texas, by its statute, if he asks
the court to determine any question, even that of service, he
submits himself wholly to its jurisdiction. Elsewhere he gets an
opinion of the court before deciding on his own action; in Texas,
he takes all the risk himself. If the service be in fact
insufficient, all subsequent proceedings, including the formal
entry of judgment, are void; if sufficient, they are valid. And the
question is whether, under the Constitution of the United States,
the defendant has an inviolable right to have this question of the
sufficiency of the service decided in the first instance and
alone.
The Fourteenth Amendment is relied upon as invalidating such
legislation. That forbids a state to "deprive any person of life,
liberty, or property without due process of law." And the
proposition is that the denial of a right to be heard before
judgment simply as to the sufficiency of the service operates to
deprive the defendant of liberty or property. But the mere entry of
a judgment for money which is void for want of proper service
touches neither. It is only when process is issued thereon or the
judgment is sought to be enforced that liberty or property is in
present danger. If at that time of immediate attack protection is
afforded, the substantial guaranty of the amendment is preserved,
and there is no just cause of complaint. The state has full power
over remedies and procedure in its own courts, and can make any
order it pleases in respect thereto, provided that substance of
right is secured without unreasonable burden to parties and
litigants.
Page 137 U. S. 21
Antoni v. Greenhow, 107 U. S. 769. It
certainly is more convenient that a defendant be permitted to
object to the service and raise the question of jurisdiction in the
first instance in the court in which suit is pending. But mere
convenience is not substance of right. If the defendant had taken
no notice of this suit, and judgment had been formally entered upon
such insufficient service, and under process thereon his property,
real or personal, had been seized or threatened with seizure, he
could by original action have enjoined the process, and protected
the possession of his property. If the judgment had been pleaded as
defensive to any action brought by him, he would have been free to
deny its validity. There is nothing in the opinion of the supreme
court or in any of the statutes of the state of which we have been
advised gainsaying this right. Can it be held, therefore, that
legislation simply forbidding the defendant to come into court, and
challenge the validity of service upon him in a personal action,
without surrendering himself to the jurisdiction of the court, but
which does not attempt to restrain him from fully protecting his
person, his property, and his rights against any attempt to enforce
a judgment rendered without due service of process, and therefore
void, deprives him of liberty or property, within the prohibition
of the Fourteenth Amendment? We think not.
The judgment is affirmed.
MR. JUSTICE BRADLEY and MR. JUSTICE GRAY dissented.
