State 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 process of law,
is not in violation of the Fourteenth Amendment.
York v. Texas, 137 U. S. 15,
affirmed and applied.
This was a motion to dismiss or affirm. The case is stated in
the opinion.
Page 138 U. S. 286
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case is before us upon a motion to dismiss the writ of
error for want of jurisdiction in this Court to reexamine the
judgment below or, if this Court has jurisdiction, to affirm the
judgment upon the ground that the question on which our right of
review depends is too frivolous to require argument upon it.
Certain provisions of the statutes of Texas relating to the
service of process are, it is contended, in violation of the clause
of the Fourteenth Amendment declaring that no state shall deprive
any person of property without due process of law. These provisions
are as follows:
"Art. 1240. The defendant may accept service of any process, or
waive the issuance of service thereof, by a written memorandum
signed by him or his duly authorized agent or attorney and filed
among the papers of the cause, and such waiver or exceptions shall
have the same force and effect as if the citation had been issued
and served as provided by law."
"Art. 1241. The defendant may in person or by attorney or by his
duly authorized agent enter an appearance in open court, and such
appearance shall be noted by the judge upon his docket and entered
in the minutes, and shall have the same force and effect as if a
citation had been duly issued and served as provided by law."
"Art. 1242. The filing of an answer shall constitute an
appearance of the defendant so as to dispense with the necessity
for the issuance of service of citation upon him."
"Art. 1243. Where the citation or service thereof is quashed on
motion of the defendant, the case may be continued for the term,
but the defendant shall be deemed to have entered his appearance to
the succeeding term of the court."
"Art. 1244. Where the judgment is reversed on appeal or writ of
error taken by the defendant for the want of service or because of
defective service of process, no new citation shall be issued or
served, but the defendant shall be presumed to have entered his
appearance to the term of the court at which the mandate shall be
filed."
"Art. 1245. No judgment shall in any case be rendered against
any defendant unless
Page 138 U. S. 287
upon service or acceptance or waiver of process or upon an
appearance by the defendant as prescribed in this chapter, except
where otherwise expressly provided for by law."
The Supreme Court of Texas, construing these statutory
provisions, has held, and it so held in this case, that a defendant
who appears only to obtain the judgment of the court upon the
sufficiency of the service of the process upon him is thereafter
subject to the jurisdiction of the court although the process
against him is adjudged to have been insufficient to bring him into
court for any purpose. The question here is whether such
legislation is consistent with "due process of law." That question,
arising upon the above statute, was presented in
York v.
Texas, 137 U. S. 15,
137 U. S. 19,
and it was there held that state 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,"
was not forbidden by the Fourteenth Amendment.
Upon the record of this case, there was color for the motion to
dismiss, and, upon the authority of
York v. Texas, the
motion to affirm the judgment is sustained.
Affirmed.