Borrego v. del Palacio

• Court: Texas Civil Court of Appeals
• Writing for the Court: WARD
• Citation: Borrego v. del Palacio, 445 S.W.2d 620 (Tex. Ct. App. 1969)
• Decision Date: 17 September 1969
• Docket Number: No. 6035,6035
• Parties: Joe BORREGO et al., Appellants, v. Edward del PALACIO, Appellee. . El Paso

Page 620

445 S.W.2d 620

Joe BORREGO et al., Appellants, v. Edward del PALACIO, Appellee.

No. 6035.

Court of Civil Appeals of Texas El Paso.

Sept. 17, 1969.

B. E. Schwarzbach, Jr., El Paso, for appellant.

Mauro Rosas, El Paso, for appellee.

WARD, Justice.

OPINION

In County Court at Law No. One, El Paso County, Texas, Edward del Palacio filed suit against Joe Borrego, Leo Escandon, and Oscar Madrid to recover certain musical instruments and rental for their use. We will refer to the parties as they appeared in the trial court. Citations were duly issued and served on the defendants. Pursuant to notice to show cause, the court, on January 19, 1968, issued a temporary injunction restraining and enjoining the defendants from disposing of or damaging the instruments in question . This order recites that the defendants appeared by and through their attorney and the same appears to have been approved by their attorney of record. No answer in any form was ever filed by the defendants to the suit on file. On August 7, 1968, default judgment was entered by the court without a jury, in favor of the plaintiff. This judgment recites that 'the judge in open court regularly called said cause in its order on the docket, and came the plaintiff by his attorney, and though duly served with process, the said defendants, as at all times heretofore, failed to answer in this behalf, but wholly made default; wherefore, * * * it appearing to the Court that from the evidence adduced the plaintiff is entitled to judgment against each defendant, individually and singularly * * *'. Judgment was therefore entered for the plaintiff against Borrego for the recovery of a certain named and numbered saxophone of the then market value of $275.00, and rental thereon in the amount of $50.00; against Escandon for the recovery of a certain named and numbered trombone of the then market value of $250.00 and rental thereon in the amount of $50.00; and against Madrid for the recovery of a certain named and numbered electric guitar and amplifier of the then market value of $300.00 and rental thereon in the amount of $50.00. The defendants, on the date of judgment, gave notice of appeal. The defendants then duly filed their motion for new trial urging the same matters in the trial court as are now presented in this appeal. It appears from the transcript that the motion was never presented to the trial court for action and that in due course, the motion for new trial was overruled by operation of law. There is no statement of facts, no request for findings of fact and conclusions of law, nor are there any filed; nor are there any bills of exception.

The plaintiff's petition, in so far as to the recovery of the instruments, alleges ownership and right of possession in the plaintiff, the wrongful taking of possession of each instrument by the respective defendants, and alleges substantially the value of each instrument. The petition states a cause of action consistent with the rules of pleading to recover specific chattels, this being a direct appeal from a default judgment. 50 Tex.Jur.2d 136. In determining whether the pleadings are sufficient to support the default judgment, we have tested them by the so-called general demurrer rule. The pleadings give fair notice to the individual defendant of the nature of the claim against him and the relief which the plaintiff is seeking, though in several instances they would be vulnerable to special exceptions. However, the pleadings are sufficient to support the default. 4 McDonald, Texas Civil Procedure, p. 1372 (1950); Edwards Feed Mill, Inc. v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958); Carpenter v. Globe Leasing, Inc., Tex.Civ.App., 421 S.W.2d 413; T--P Investment Corporation v. Winter, Tex.Civ.App., 400 S.W.2d 957 (dis'm).

The defendants, by two of their points, complain of the failure of the plaintiff to comply with the Soldiers' and Sailors' Civil Relief...