Bilby v. Rodgers

• Decision Date: 08 January 1910
• Citation: 125 S.W. 616
• Parties: BILBY v. RODGERS.
• Court: Texas Court of Appeals

125 S.W. 616

BILBY v. RODGERS.

Court of Civil Appeals of Texas.

January 8, 1910.

Error from District Court, Scurry County; C. C. Higgins, Judge.

Action by N. N. Rodgers against John S. Bilby. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

Stephens & Miller, for plaintiff in error Woodruff & Yantis and Theodore Mack, for defendant in error.

CONNER, C. J.

Plaintiff in error complains of a judgment against him by default in a suit instituted in the district court of Scurry county by defendant in error, N. N. Rodgers, against plaintiff in error, Bilby, the Southern Co-operative Company, and John A. Wisherd. Recovery was sought against Wisherd on certain promissory notes amounting to $9.280, besides interest and attorney's fees, and for a foreclosure of the vendor's lien on lands described in the petition against Bilby and the Southern Co-operative Company.

Error is assigned to the judgment on the ground, among other things, that the citation served upon plaintiff in error is insufficient to support it. Plaintiff in error was alleged to be a resident of the state of Missouri and the citation served upon him is in compliance with Rev. St. 1895, art. 1230, relating to absentees from the state or nonresidents thereof when sued, save that it did not give the names of all the parties to the suit. It failed to set out either the name of plaintiff in error or of the Southern Co-Operative Company. The article of the statute cited, in addition to other things not necessary to here notice, declares in reference to the citation that: "Its style shall be `The State of Texas,' and it shall give the date of the filing of the petition, the file number of the suit, the names of all the parties and the nature of plaintiff's demand, and it shall state that a copy of the plaintiff's petition accompanies the notice." It is well settled that these provisions are imperative, and that a citation lacking in the essential element of naming all the parties to the suit will not support a judgment by default. Burleson v. Henderson, 4 Tex. 49; Heath v. Fraley, 50 Tex. 209; Owsley v. Bank, 1 Posey Unrep. Cas. 93. This is true even though the judgment, as here, recites due service. See Burditt v. Howth, 45 Tex. 466, and authorities cited in support of the proposition by Mr. Justice Dunklin in the case of Mayhew & Co., Plaintiff in Error, v. Harrell et al., Defendants in Error, 122 S. W. 957. A statement of facts was made out and filed as required by Rev. St. 1895, art. 1504d, in cases of judgment by default against nonresidents, and the following extract therefrom is urged by defendant in error as an answer to the assignment under consideration, viz.: "Plaintiff next offered in evidence a notice and citation to serve nonresidents, in due and legal form, in this case, directed to John S. Bilby, issued by the district clerk of Scurry county, Tex., on the 20th day of August, 1908, and showing the sheriff's return, as follows: `The State of Oklahoma, County of Tulsa. Personally appeared before me, the undersigned authority, Geo. W. Webster, who being by me duly sworn deposes and says that on the 31st day of August, A. D. 1908, at 1 o'clock p. m. in the town of Broken Arrow, ...