Alpha Guard, Inc. v. Callahan Chemical Co., 12723
| Decision Date | 21 June 1978 |
| Docket Number | No. 12723,12723 |
| Citation | 568 S.W.2d 448 |
| Parties | ALPHA GUARD, INCORPORATED, Petitioner, v. CALLAHAN CHEMICAL COMPANY, Respondent. |
| Court | Texas Court of Appeals |
Shirley Meissner Arend, Austin, for petitioner.
Bernard J. Buecker, Juarez, Camacho & Phillips, Austin, for respondent.
This cause is in this Court by writ of error from a default judgment for $13,900 entered by the district court of Travis County against petitioner Alpha Guard, Incorporated. Respondent is Callahan Chemical Company. The issue is whether the district court obtained jurisdiction of petitioner by substituted service of process on the Secretary of State in accordance with Tex.Rev.Civ.Stat.Ann. art. 2031b (1964).
In its trial petition respondent pleaded that petitioner
Petitioner made no appearance, and on February 2, 1977, the district court entered the default judgment. The judgment recited that petitioner " . . . though duly served with process, failed to appear or answer in its behalf and has defaulted." Because the writ of error is a direct attack upon a default judgment, the recital in the judgment of due service of citation is not controlling. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965).
Petitioner claims that substituted service was not made in accordance with provisions of art. 2031b. We agree and will reverse the judgment.
A plaintiff who seeks to utilize any form of substituted service on a defendant must demonstrate strict compliance with the applicable statute. Charles Cohen, Inc. v. Adams, 516 S.W.2d 464 (Tex.Civ.App.1974, no writ). He must: (1) plead facts that, if true, would require the defendant to answer; and (2) prove that the defendant was, in fact, served in the required manner. Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex.1973).
The quoted portion of respondent's petition clearly shows that respondent did not plead facts entitling it to obtain substituted service on petitioner by serving the Secretary of State under sections 2 or 6 of art. 2031b. Neither did respondent plead facts entitling it to substituted service under section 3, since under section 3 respondent must have pleaded that petitioner did " . . . not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State . . . " McKanna v. Edgar, supra.
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...statute lacking where: 1) the plaintiff did not allege that the defendant was a foreign corporation, Alpha Guard, Inc. v. Callahan Chemical Co., 568 S.W.2d 448, 449 (Tx.Civ.App.1978); 2) the plaintiff did not allege that the defendant did not have a regular place of business in Texas, Publi......
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