Artex Refining Co. v. Pollard & Lawrence, 5312.

• Decision Date: 05 January 1939
• Docket Number: No. 5312.,5312.
• Parties: ARTEX REFINING CO. et al. v. POLLARD & LAWRENCE.
• Court: Texas Court of Appeals

124 S.W.2d 946

ARTEX REFINING CO. et al. v. POLLARD & LAWRENCE.

No. 5312.

Court of Civil Appeals of Texas. Texarkana.

January 5, 1939.

Rehearing Denied February 16, 1939.

Appeal from Smith County Court; Brady P. Gentry, Judge.

Action by Pollard & Lawrence against the Artex Refining Co. and another for legal fees. Judgment for plaintiffs by default, and defendants appeal.

Affirmed.

Ronald Smallwood, of Corpus Christi, for appellants.

Pollard & Lawrence and William S. Reeves, all of Tyler, for appellees.

HALL, Justice.

This was a suit brought by the law firm of Pollard & Lawrence, alleged to be a co-partnership composed of Senator Thomas G. Pollard and Judge W. Dewey Lawrence, for certain legal fees for professional services rendered appellants amounting in all to the sum of $308.65, alleged to be owing by appellants. An itemized sworn account was attached to the original petition. This suit was filed November 21, 1936, and judgment by default was rendered against appellants and in favor of appellees on February 15, 1937, for the full amount of their claim. The case is now properly before us on appeal.

No statement of facts accompanies the record, and our examination of same will be for fundamental error only. The first contention made by appellants is that the petition of appellees is insufficient upon which to predicate a judgment against appellants, in that it was brought by Pollard & Lawrence as a co-partnership and not by the individuals composing the partnership. This contention is overruled. While it is true that the petition alleges that the suit is brought by Pollard & Lawrence, "a co-partnership composed of Thomas G. Pollard and W. Dewey Lawrence," the petition thereafter refers to the appellees as "plaintiffs" and shows conclusively, absent a special exception, that the suit is prosecuted by the individuals, Thomas G. Pollard and W. Dewey Lawrence, and the allegation as made would not render the petition, in our opinion, subject to general demurrer and is sufficient upon which to base the judgment by default. Scott v. Llano County Bank, Tex.Civ.App., 85 S. W. 301; Scott v. Llano County Bank, 99 Tex. 221, 89 S.W. 749.

Another contention is made by appellants that the court erred in rendering judgment against Mac Hall because: (1) The plaintiffs' petition does not state sufficient facts to authorize the judgment against him: (2) because the judgment is based upon a verified account attached to plaintiffs' petition, which account is against Artex Refining Company only; and (3) the petition fails to state facts authorizing a judgment against Mac Hall as a stockholder and director of Artex Refining Company. These contentions are overruled. The petition simply states that appellees performed the services shown by the verified account attached to the petition for the defendant and that "the defendants became obligated to pay plaintiff the several sums of money charged therefor in said account specified, amounting to the sum of Three Hundred Eight and 65/100 ($308.65) Dollars after allowing all due credits and offsets; then and there agreed and promised to pay plaintiff said amounts." This averment alleges simply that the services were performed for defendants and that defendants promised to pay for same. The judgment recites "and it appearing to the Court that the cause of action herein is based upon a verified account in the sum of Three Hundred Eight and 65/100 ($308.65) Dollars, and the pleadings and evidence having been heard by the Court and by him understood." We have no way of knowing what evidence was before the court other than the sworn account attached to the petition, but we indulge the presumption which obtains in favor of the judgment that it was rendered upon sufficient evidence. Therefore these contentions are overruled.

The other assignments brought forward by appellants have been examined and in the light of this record are found without merit and are overruled.

The judgment is affirmed.

On Motion for Rehearing.

Appellants in their motion for rehearing earnestly insist that we were in error in our original opinion, handed down on January 5th, 1939, affirming the judgment of the court below, for the reason that this appeal presents fundamental error in the following particular: Appellees in their original petition alleged the residence of appellants to be in Smith County, Texas, but service of citation was had upon them in Cooke County, Texas. Appellants cite in support of this contention Walden v. Locke, Tex.Civ.App., 33 S.W.2d 475; Tyler v. Blanton, 34 Tex.Civ.App. 393, 78 S.W. 564; Friend v. Thomas, Tex. Civ.App., 187 S.W. 986; Massie Drilling Co. v. Nees, Tex.Com.App., 266 S.W. 504; Shambeck v. Johnson, Tex.Civ.App., 281 S.W. 349; R.C.S. art. 2029, Vernon's Ann. Civ.St. art. 2029. Under the record presented in this case these authorities are not in point. It affirmatively appears from the...