Barnes v. U.S. Fidelity & Guaranty Co.

• Court: Texas Civil Court of Appeals
• Writing for the Court: HALE
• Citation: Barnes v. U.S. Fidelity & Guaranty Co., 279 S.W.2d 919 (Tex. Ct. App. 1955)
• Decision Date: 26 May 1955
• Docket Number: No. 3280,3280
• Parties: J. K. BARNES, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.

Page 919

279 S.W.2d 919

J. K. BARNES, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.

No. 3280.

Court of Civil Appeals of Texas, Waco.

May 26, 1955.

Rehearing Denied June 16, 1955.

Oscar M. Herring, Fort Worth, for appellant.

Curtis White, Dallas, for appellee.

HALE, Justice.

Appellant instituted this suit in the 77th Judicial District Court of Limestone County on August 24, 1954, to set aside a judgment rendered on December 8, 1943 in that court for appellee in the sum of $660.07. As grounds of the relief sought, appellant alleged in substance that the judgment in the prior suit was void because the court did not have jurisdiction over the subject matter or over the person of the defendant in that case. Appelee answered the suit with a general denial and with pleas of laches and the two and four year statutes of limitation. Trial before the court without a jury resulted in judgment denying any relief to appellant, and hence this appeal.

Appellant says, in substance, that the trial court erred in refusing to set aside the former judgment because (1) the petition of appellee in the prior suit showed upon its face that the amount in controversy was below the jurisdiction of the District Court and (2) although the former judgment recited that citation had been duly served on appellant as defendant in that suit, no citation was ever served upon him.

On the trial of the present suit, appellant introduced in evidence the original petition of appellee in the former suit, the citation issued thereon with the sheriff's return attached thereto, and the default judgment rendered therein. The original petition of appellee was filed on February 9, 1940. It was alleged in substance by appellee in its original petition that about March 15, 1936, appellant had made written application for it to become surety on a fidelity bond to appellant's employer, and the written indemnity agreement contained in the application for the bond was set out verbatim in the petition of appellee. The indemnity agreement provided among other things, that appellant would 'protect and indemnify the said Company against and loss, damage or expense that it may sustain or become liable for in consequence of such guarantee on my behalf by said Company, and forthwith after said Company shall have paid the party or parties entitled to the same, any money under or by reason of such guarantee, to repay the said Company the amount so paid, and all other losses, costs, damages and expenses, including the court costs and counsel fees, at law or in equity, if any, that it shall have incurred or become liable for in consequence of said guarantee.' It was further alleged by appellee in its petition that it had issued a fidelity bond as surety for appellant under said application, in the sum of $1,000; that Atlas Supply Company, appellant's employer, made claim against it under the fidelity bond and on March 10, 1937, it discharged its liability as surety on the bond by paying $471.53 to Atlas Supply Company; and that, by reason of the foregoing facts, appellant was indebted to it in the sum of $471.53 with interest thereon at the rate of 6% from the date of said payment until paid.

On December 8, 1943, the court below rendered judgment in the prior suit in favor of appellee and against appellant for the sum of $660.07, together with interest from the date of the judgment at the rate of 6% per annum. The judgment recites that the plaintiff, the United States Fidelity & Guaranty Company, announced ready for trial by its attorney and that 'defendant J. K. Barnes, although duly cited to appear and answer herein, came not but wholly made default.'

By the terms of Art. V, § 8 of the Vernon's Ann.St.Constitution of Texas, and of Art. 1906, Subd. 6 of Vernon's Tex.Civ.Stats., the district courts of this State are vested with original jurisdiction over civil suits 'when the matter in controversy shall be valued at or amount...