Heirs of Yturri v. J. D. McLeod, Chief Justice, &c., for use, &c., 26 Tex. 84

Wheeleb, 0. J. The petition is framed with the two-fold object of reviewing and annulling the former judgment of the District Court, and bringing before the court for revision by certiorari the judgment of the Probate Court rendered thereon. The several grounds upon which it is sought to review the judgment of the District Court, except the alleged want of service upon the guardian of these plaintiffs, and his alleged fraudulent collusion in the rendition of that judgment, are errors in law apparent on the face of the record.

And for these we have heretofore held the proceeding by bill of review will not lie in our practice. The remedy is by appeal or writ of error. (Seguin v. Maverick, 24 Tex. R., 526.) The alleged collusion of the guardian of the plaintiffs is wholly unsupported by anything in the evidence or in the record.

And this disposes of the case as a proceeding by bill of review, or a bill in the nature of a bill of review, to revise and annul the judgment of the District Court, except as to the alleged nullity of the judgment for the want of service. • The judgment of the Probate Court is sought to be revised upon grounds of error and nullity in the judgment of the District Court on which it was rendered. But as to mere errors of law in the judgment of the District Court, we take it to he perfectly clear that these were not examinable in the Probate Court.

Without specifying the several alleged grounds of error, therefore, it will suffice to say, that being at most but errors in law which might authorize a reversal in a proceeding by appeal or writ of error, but would not authorize a court in a collateral proceeding to treat the judgment as null, as they were not examinable in the Probate Court, they cannot be brought under revision by this proceeding by certiorari to revise that judgment.

But if, as alleged, the judgment of the District Court was null for the want of service upon the guardian of these plaintiffs, it is clear that it could not constitute a basis for the rendition of judgment in the Probate Court. It is material therefore to consider this, which is the only remaining ground on which that judgment is sought to be reversed and annulled. It seems that a part of the papers in the cause had been lost or destroyed; and the record affords no evidence of service upon the guardian of the plaintiffs, Mariano Rodriguez.

It does appeal’, however, that he had been made a party by an amended petition, and the record of the judgment recites that the parties appeared by their attorneys. This, it is conceived, must be taken to be prima facie evidence that the defendant Rodriguez did appear and subject himself to the jurisdiction of the court over his person in that case upon the trial. (Merritt v. Clow, 2 Tex. R., 582.) It further appears that the defendants moved for a new trial; and also that the defendant Jacques made a separate motion for a new trial, the two motions being represented by different counsel.

As there are but two defendants mentioned in the judgment, and as there are two distinct motions for a new trial, represented by different counsel, the inference would seem to be very strong that both defendants were, in fact, represented in court; and that the recital in the judgment that the parties appeared by their attorneys was not a clerical error. If the appearance of the defendant rested alone on the motions for a new trial, that might not be sufficient; but it may be referred to as sustaining the presumption arising from the recital in the judgment.

The appearance of the party was a waiver of citation and service, and authorized the rendition of judgment. We conclude therefore that this alleged ground of nullity in the judgment cannot be maintained, and that there is no error in the judgment.. The view we have taken of the caso renders it unnecessary to inquire whether this proceeding, as a bill of review of the judgment of the District Court, was barred by the statute of limitations, as to these infant plaintiffs. If not, it would seem they may still have their writ of error to revise the judgment they have here sought to have reviewed. (O. & W.

Dig., Art, 1,347, 1,352.) The judgment is affirmed. Judgment affirmed.