Carson Bros. v. McCord-Collins Co.

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: Carson Bros. v. McCord-Collins Co., 84 S.W. 391, 37 Tex. Civ. App. 540 (Tex. App. 1904)
• Decision Date: 31 December 1904
• Parties: CARSON BROS. v. McCORD-COLLINS CO.

84 S.W. 391

CARSON BROS. v. McCORD-COLLINS CO.

Court of Civil Appeals of Texas.

December 31, 1904.

Error from Tarrant County Court; R. F. Milam, Judge.

Action by the McCord-Collins Company against Carson Bros. There was a judgment for plaintiff, and defendants bring error. Reversed.

McCall & McCall, for plaintiffs in error. Sidney L. Samuels, for defendant in error.

SPEER, J.

The default judgment from which this writ of error is prosecuted must be reversed, because the writ of citation relied upon to give jurisdiction over the persons of the plaintiffs in error was fatally defective, in that the seal of the county court of Tarrant county was not impressed thereon as required by statute (Sayles' Ann. Civ. St. 1897, arts. 1214, 1447). Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655; Brewster v. Norfleet (Tex. Civ. App.) 22 S. W. 226; Chambers v. Chapman, 32 Tex. 570; Hale v. Gee (Tex. Civ. App.) 29 S. W. 44; Line v. Cranfill (Tex. Civ. App.) 37 S. W. 184.

Plaintiffs in error, having filed no pleadings whatever in the court below, are in no position to raise the questions in this court of their privilege to be sued in the county of their residence, or of usury in the debt sued upon. The county court appears to have had jurisdiction of the subject-matter, and, upon the service of a valid citation, would have had jurisdiction over the persons of the plaintiffs in error, subject to be defeated only by the timely presentation of a proper plea of privilege. Pool v. Pickett, 8 Tex. 122; Masterson v. Ashcom, 54 Tex. 324.

It can make no difference that the original petition did not allege a promise in writing, since the general allegation of a promise to pay in Tarrant county is sufficient. The requirement of the statute of frauds relates to the evidence, and not to the pleadings. Robb v. San Antonio Street Railway, 82 Tex. 392, 18 S. W. 707; Cross v. Everts, 28 Tex. 523; ...