Buttrill v. Occidental Life Ins. Co., 10856.

• Decision Date: 04 October 1930
• Docket Number: No. 10856.,10856.
• Citation: 31 S.W.2d 833
• Parties: BUTTRILL et al. v. OCCIDENTAL LIFE INS. CO.
• Court: Texas Court of Appeals

31 S.W.2d 833

BUTTRILL et al. v. OCCIDENTAL LIFE INS. CO.

No. 10856.

Court of Civil Appeals of Texas. Dallas.

October 4, 1930.

Action by the Occidental Life Insurance Company against A. B. Buttrill and others. Judgment for plaintiff, and defendants appeal by writs of error. On motion to dismiss the appeals.

Motions overruled.

Read, Lowrance & Bates, of Dallas, for the motion.

LOONEY, J.

Defendant in error, a New Mexico corporation doing business in this state under a permit, sued A. B. Buttrill, principal debtor, on certain written instruments, and brought in as defendants L. O. Turner and Sam L. Sanders, as sureties on a bond in which they agreed, in the event of Buttrill's failure, to pay plaintiff the indebtedness evidenced by the instruments sued upon, not to exceed the sum of $1,000, and in like manner and on similar allegations plaintiff brought in E. T. Scheppler and Wesley B. Young, seeking recovery against them as sureties on a separate bond in the sum of $1,500. Plaintiff recovered a default judgment against Buttrill for the sum of $2,023.08, and against the two sets of sureties on the bonds respectively executed by them. Defendants appealed by writs of error.

Defendant in error moves to dismiss Buttrill's appeal on the following grounds:

(1) Because the citation in error failed to state the names of all defendants, reciting only that "A. B. Buttrill et al are defendants." Plaintiff in error was not required to do other than allege "the names and residences of the parties adversely interested" (article 2257, R. S. 1925), and this requirement was complied with. The statute (article 2260) requires that the citation in error state "the names of the parties" given in the petition, but it is evident that provision refers only to parties whose names are required to be mentioned in the petition; that is, those "adversely interested." We therefore overrule this ground of the motion.

(2) Because it does not appear that an original citation in error was issued "forthwith" after the petition in error was filed, and further that the citation indorsed "alias" does not indicate how many previous citations had been issued.

Article 2259 of the statute directs the clerk, upon the filing of a petition for writ of error, to "forthwith" issue citation, and article 2262 provides that, "if the citation is returned not executed, the clerk shall forthwith issue an alias or pluries citation, as the case may be."

The record discloses that the petition in error was filed May 31, 1930, and on June 12 following the alias citation was issued. The clerk was not authorized to issue an alias until the original citation was returned "not executed"; therefore, nothing appearing to the contrary, the presumption will be indulged that the clerk did his duty and issued citation "forthwith" after the filing of the petition, and further that, on its return not executed, he forthwith issued the alias. We overrule these contentions.

(3) The next ground of the motion is based on the idea that, service of citation in error on Fitzhugh B. Marshall was not in compliance with the statute, in that, he was not one of the persons named in the statute upon whom process against foreign corporations may be served; hence the service was void and did not confer jurisdiction upon this court.

The controlling statute is article 2031, R. S. 1925, which provides that, process against foreign corporations may be served, among others, on its "general manager, and in any cause of action arising within this State, process may also be served upon any local or traveling agent, or traveling salesmen of such corporation," etc. The petition in error alleged ...