Central & M. R. Co. v. Morris

• Decision Date: 08 March 1887
• Citation: 3 S.W. 457
• Parties: CENTRAL & M. R. CO. <I>v.</I> MORRIS and another.
• Court: Texas Supreme Court

3 S.W. 457

CENTRAL & M. R. CO.

v. MORRIS and another.

Supreme Court of Texas.

March 8, 1887.

Error to district court, Montgomery county.

Ballinger, Mott & Terry, for plaintiff in error. Hutcheson, Carrington & Sears, for defendants in error.

GAINES, J.

This suit was brought in the first instance by Morris & Crawford against the Central & Montgomery Railroad Company and the Gulf, Colorado & Santa Fe Railway Company, to recover damages for a failure by the defendants to transport the lumber of plaintiffs, upon demand. The original petition was filed January 9, 1883. At the first term of the court the cause was continued by operation of law; at the second, as upon "affidavit of defendant," (but which defendant the record does not disclose;) and at the third term the suit was dismissed as to the Gulf, Colorado & Santa Fe Railway Company, and judgment by default taken against the Central & Montgomery Company for want of an answer. That company now brings the case to this court by a writ of error.

We shall discuss only the controlling questions in the case, and in doing so shall not observe the order of the assignments laid down in the brief for plaintiff in error.

The eighth assignment is that "the court erred in rendering judgment against this defendant, because the record shows no legal service of citation or process on this defendant." At the first term of the court there was a motion to quash the citation by each of the defendant companies. That of the Gulf, Colorado & Santa Fe Company was sustained. The motion of the other company was overruled, and an exception taken by it, and noted on the record. The cause was thereupon continued by operation of law. On the fifth of May, 1883, two alias citations were issued, which are copies of each other, except that in one the sheriff is commanded to deliver to the defendant the Central & Montgomery Railroad Company, or their local agent at Montgomgomery, one R. A. Messick, a true copy of this citation; in the other, in the corresponding part of the writ, the name of the other defendant company is used. The sheriff's return is the same upon each citation, and is to the effect that he executed it "by delivery to R. A. Messick at his office, during office hours, in the town of Montgomery, as local agent in Montgomery, Montgomery county, Texas, of the within named defendants, in person, a true copy of this writ." The petition alleged that Messick was the agent of both companies, and it would seem to us in such case that, although the citations may be exactly the same, a copy for each of the defendants should be left with such agent. It is reasonable to presume that the law contemplated that the agent should transmit the copy served upon him to his superiors, and therefore a writ for each would be necessary for the purpose. Now, if the alias citations which were issued had been identical in language throughout, the sheriff's return would have admitted of the construction that he had delivered but one copy, because a copy of the one would have been a copy of the other. But in this case there is a distinctive difference between the two citations actually issued; so that by the return indorsed upon each, that a copy of "this writ" had been delivered to the agent, we know that a copy of the citation for each defendant was served upon the agent. This would seem to be sufficient. The fact that one citation issued for each defendant, when the statute directed that one should issue for all the defendants living in the same county, might render plaintiff responsible for the additional costs, but would not render the service void. See Thompson v. Griffis, 19 Tex. 115. The alias citation directed the sheriff to serve Messick as agent of defendant the Central & Montgomery Company. The return describes him as agent of both defendants. The agency having been averred in the petition, and the agent to be served being expressly named in the citation, we do not see that anything more was necessary to appear in the return than that the sheriff had delivered a copy of the writ to the person whom he was directed to serve. It is also urged that the citation is defective because it commands the sheriff to summon the Central & Montgomery Railway Company, whereas the petition is filed against the Central & Montgomery Railroad Company. It has been decided by this court that such a variance is immaterial. Galveston, H. & S. A. Ry. Co. v. Donahoe, 56 Tex. 162.

But let it be conceded, for the sake of the argument, that the alias citation and service upon the alleged agent were not good. At the first term of the court the plaintiff in error moved to quash the service upon it, and its motion was overruled. The statute merely provides that, if the citation or service is quashed upon motion of the defendant, he shall be deemed to have entered his appearance to the succeeding term of the court. Rev. St. art. 1243. The result of this rule is that, whenever he appears and moves to quash the service, he is considered as having appeared to the merits at the next term, whether his motion be sustained or overruled. If properly overruled, he is in court from the time of the service. If improperly overruled, and the cause be continued, he is not prejudiced by the action of the court, for the reason that the continuance is the only advantage he would have obtained if his motion had been granted. The error in such case is immaterial, and is not a ground for the reversal of the judgment. It is the option of a defendant who thinks he is not duly served with process either to move to set it aside, or to appeal from the judgment should one be rendered against him. There is no compulsion upon him to pursue the former course. Should he see proper to do so, it is not seen that the legislature has infringed any of his constitutional rights by declaring, in effect, that his appearance to quash the writ or service shall at all events be deemed a good appearance for the next term, should the cause be continued. The statute is a salutary one. It tends to the speedy disposition of causes, to the saving of costs, is conservative of the rights of the parties, and should be liberally construed and applied. We are of opinion, therefore, that plaintiff in error was properly in court, so far as the original petition was concerned.

But after the cause was continued at the first term, and after the issuance and service of the alias citation, an amended original petition was filed. It is not contended that the amendment was such as required notice to defendant before judgment by default could be rendered upon it. It is especially urged that the original petition showed no cause of action against plaintiff in error, and that when such is the case the defendant should be served with notice of any amendment which makes the petition good. When no cause of action is set up, it would seem that the defendant might well conclude the court would not render judgment upon the petition, and therefore gave himself no further concern about the case. Hence it is to be inferred that he might not be required to take notice of any amendments to it, but that new process should issue. But we do not feel called upon to decide that question, because we are of opinion that the original petition in this case did show a cause of action. It alleged that both of the defendant companies were corporations, organized under the laws of the state, and were common carriers; that the Gulf, Colorado & Santa Fe Company, about January, 1882, took control of the road and property of the Central & Montgomery Company under a purchase, or claim of purchase, and had since operated the road; that during the season plaintiffs had delivered large quantities of lumber at the depot, and demanded transportation, which had been refused; and closed with very specific allegations of damages. It is urged, among other...