A. B. Richards Medicine Co. v. Reeves

• Decision Date: 04 December 1924
• Docket Number: (No. 2990.)
• Parties: A. B. RICHARDS MEDICINE CO. v. REEVES.
• Court: Texas Court of Appeals

266 S.W. 594

A. B. RICHARDS MEDICINE CO. v. REEVES.

(No. 2990.)

Court of Civil Appeals of Texas. Texarkana.

December 4, 1924.

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

Suit by Ed. R. Reeves against the A. B. Richards Medicine Company to enjoin execution of a judgment. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

The appellant brought a suit against the appellee in the justice court of Grayson county, in the nature of an action for debt, in the sum of $23.45. On September 24, 1923, the regular appearance day of the justice court, a judgment by default was rendered against appellee for the amount sued for by appellant. Thereafter the appellant caused to be issued an alias execution to Lamar county, which was placed in the hands of the sheriff for execution. The appellee then filed a petition in the district court of Lamar county, and before any levy upon property by the sheriff, averring that the judgment entered by default on September 24, 1923, was legally invalid and void because the citation issued and served in the case (1) summoned the appellee to appear and answer the appellant's suit on September 27, 1923; (2) did not state the date of the filing of the suit; and (3) was not accompanied by a certified copy of the account sued on. The sheriff of Lamar county, the appellant, and the justice of the peace of precinct No. 1 of Grayson county were made defendants in the suit. The petition prayed, upon final hearing, for a decree "perpetually restraining the defendants, and each of them, from having issued and served any execution, alias execution or any process whatever based on the said void and illegal judgment, and for costs and general relief in the premises." The appellant appeared and filed pleadings in the suit, but the sheriff and the justice of the peace did not do so.

The appellant first filed a plea to the jurisdiction of the district court of Lamar county to hear and determine the petition upon the two grounds that (1) the matter in controversy is less than $500, and (2) was a suit that should be brought in Grayson county, the county where the alleged judgment was rendered. The appellant asked in the plea that "this cause be transferred to the district court of the Fifty-Ninth judicial district. in Sherman, Grayson county." The appellant then filed an answer consisting of demurrer, special exceptions, and general denial, "without waiving the plea as to jurisdiction and the plea of privilege heretofore filed, but still insisting on the same." All the pleadings were filed at the same time and in due order. The court acted on the pleas in their order and separately, and overruled them. Then the case was tried before the court on the merits, and judgment was rendered in favor of appellee as follows: (1) Restraining the sheriff of Lamar county from serving the alias execution in his hands "and from serving any other execution issued out of said court on said judgment"; (2) permanently restraining "the A. B. Richards Medicine Company from procuring or causing to be issued any further execution on said judgment"; (3) permanently restraining "H. D. Cumby (the justice of the peace) from issuing any further process upon said judgment."

The court made special findings of facts. A statement of facts does not accompany the record. The court's finding of facts read:

"The defendant, John Brown, resides in and is the sheriff of Lamar county, Tex.; the other defendants named reside in Grayson county, Tex. The plaintiff resides in Lamar county, Tex.

"Defendant, A. B. Richards Medicine Company, obtained a judgment in the justice court, as alleged by plaintiff and had execution issued by the defendant Cumby and placed in the hands of John E. Brown, sheriff, for the purpose of service, and he was threatening to serve the same, when temporary restraint was had in this cause.

"The plaintiff herein, E. R. Reeves, had a good defense to his suit in the justice court at Sherman, Grayson county, which he did not offer in said cause and filed no answer therein. The citation in said suit in the justice court did not state the date that the suit was filed, and the copy served on plaintiff gave the return date as September 27th. Judgment was taken on the 24th preceding the date. On the 25th or 26th of the said month, plaintiff herein filed his plea of privilege to be sued in the county of his residence, which plea was never acted upon by the justice of the peace. Upon the judgment thus taken the execution was issued that is now in the hands of the sheriff of Lamar county, and is the one sought to be restrained herein."

A certified copy of the account sued on did not, as admitted, accompany the citations. In the light of the pleadings, and as treated in the briefs, the citations, both original and copy, were typewritten, showing the return day of court as "September 27, 1923." The figures "27" were crossed out and the figures "24" written in red ink in the original citation, but the copy served on the appellant was not corrected in that respect, and remained as originally typewritten, "September 27, 1923." Except in this particular respect, the copy was a true and literal copy of the original citation.

Cliff Huggins, of Sherman, and Johnson & McMillan, of Paris, for appellant.

Tom L. Beauchamp, of Paris, for appellee.

LEVY, J. (after stating the facts as above).

The appellant filed the following sworn plea, and the same was not controverted, viz.:

"Now comes A. B. Richards Medicine Company, a corporation, having its principal office and place of business in the city of Sherman, Grayson...