Commercial Credit Corporation v. Smith

• Decision Date: 11 April 1945
• Docket Number: No. A-383.,A-383.
• Citation: 187 S.W.2d 363
• Parties: COMMERCIAL CREDIT CORPORATION v. SMITH.
• Court: Texas Supreme Court

187 S.W.2d 363

COMMERCIAL CREDIT CORPORATION v. SMITH.

No. A-383.

Supreme Court of Texas.

April 11, 1945.

Rehearing Denied May 23, 1945.

Further Rehearing Overruled July 11, 1945.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Commercial Credit Corporation against George W. Smith to recover balance due on note and for foreclosure of chattel lien on an automobile securing the note. An order of the county court refusing to set aside a judgment rendered against defendant on cited publication was reversed by the Court of Civil Appeals, 187 S.W.2d 360, and the plaintiff brings error.

Judgment of Court of Civil Appeals reversed and judgment of county court affirmed.

Biggers, Baker & Lloyd and Ralph D. Baker, all of Dallas, for plaintiff in error.

Richard B. Humphrey, of Dallas, and George W. Eddy, of Houston, for defendant in error.

SIMPSON, Justice.

Commercial Credit Corporation, the petitioner here, sued George W. Smith, the respondent, and another in a county court of Dallas County for $532.94, besides interest and attorneys' fees, the balance due on a promissory note executed by Smith and acquired by the petitioner and for foreclosure of a chattel mortgage lien on an automobile which the petitioner alleged was valued at less than $500. Service of citation was by publication. The trial court entered judgment June 24, 1943, establishing the debt and foreclosing the lien but the decree also ordered that "no personal judgment of any kind be rendered" against Smith. On October 23, 1943, at a subsequent term, Smith filed an unsworn motion to reopen the judgment, alleging that he had been a member of the "armed forces of the United States" and a resident of Dallas County when the suit was filed, when publication of the process was made and when the judgment was rendered against him, which facts, he pleaded, were known to the petitioner and the judgment was therefore void. He also pleaded that the value of the automobile was in excess of $1200 and the allegation that it was valued at less than $500 was made solely for the purpose of showing jurisdiction in the County Court. The trial court denied his motion and he appealed. The Court of Civil Appeals concluded that the judgment Smith sought to vacate was void on the face of the record and reversed and remanded the cause.

Smith filed an affidavit in lieu of a bond on appeal in which he stated that he had made diligent efforts to give an appeal bond and was unable to do so by reason of his poverty; that his compensation from the Government had not yet begun to be paid and that he was unable to find profitable work which he was able to do. These statements include what is required for an affidavit in lieu of a bond on appeal from the county to the district court in certain probate matters. Rule 333, Texas Rules of Civil Procedure. Under the provisions of Rule 355, which is applicable to an affidavit in lieu of a bond upon appeal to a Court of Civil Appeals, an appellant is entitled to prosecute the appeal without a bond by filing an affidavit stating "he is unable to pay the costs of appeal or any part thereof, or to give security therefor." The sufficiency of Smith's affidavit was not questioned in the trial court as Commercial Credit Corporation was entitled to do under Rule 355 but was raised originally in the Court of Civil Appeals by a motion to dismiss the appeal. The Court held in effect that from the language employed "the idea may be gleaned that defendant was unable to pay the cost, or any part thereof, or give security therefor." This conclusion is in keeping with the policy of liberal construction which the rules enjoin. Rule 1. Fairly implicit in the facts set up in the affidavit are the elements which Rule 355 states should be included.

The exact reverse of the situation here was presented in Clark v. Briley, Tex.Civ. App., 193 S.W. 419 (error refused), where the appellant made his affidavit conformably to the statute which is now Rule 355 when he should have made it under the statute which is now Rule 333. The affidavit was questioned for the first time in the Court of Civil Appeals where it was held good. That decision followed Stewart v. Heidenheimer Bros., 55 Tex. 644, opinion by Chief Justice Gould, which held immaterial the omission of the words "or any part thereof" in an affidavit in lieu of a bond filed under the statute which has now been brought forward as Rule 355. Substantial rather than strict compliance with the Rule is all that properly should be required and the Court of Civil Appeals correctly denied the motion to dismiss the appeal.

Moreover, a dismissal would not have been warranted for this want of formal compliance with the rules without the allowance of a reasonable time for correction of the defect the petitioner pointed out. The provisions of Rule 437 have application in such a case as this. Smith made a motion in the Court of Civil Appeals for leave to amend the affidavit and had it been impossible to garner from the language employed sufficient facts to warrant holding the affidavit substantially complied with the applicable requirements, his motion to amend should have been allowed.

The record shows that Smith's motion to reopen was overruled by the trial court after it had "considered the pleadings, evidence and argument of counsel." What evidence the court heard does not appear since there is no statement of facts. Nor are there findings of fact or bills of exception. With the record in this attitude, Commercial Credit Corporation urges that the Court of Civil Appeals erred in reversing the judgment of the court below because all presumptions must be indulged in favor of that judgment, the case having been tried to the court without a jury, and particularly it must be presumed that the trial court found the facts to be such as would support the judgment, which "in the case at bar involved the finding that citation by publication was proper." This contention must be sustained. It is not open to question that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court's findings and judgment and where there are no findings and no statement of facts, such facts as are necessary to support the judgment must be presumed to have been found. McElyea v. Parker, 125 Tex. 225, 81 S.W. 2d 649; Anchor v. Wichita County Water Improvement District No. 2, 129 Tex. 70, 103 S.W.2d 135, 112 A.L.R. 70; Home Owners Loan Corporation v. Cilley, Tex. Civ.App., 125 S.W.2d 313 (error refused); Uvalde Construction Co. v. Joiner, 132 Tex. 593, 126 S.W.2d 22; Valdez v. Rodriguez, Tex.Civ.App., 173 S.W.2d 514 (error refused); 3 Tex. Jur. 529 et seq. (§§ 373, 374, 378-382 incl.); 3 Tex.Jur. 1062 et seq. (§§ 749, 750).

It follows that the judgment of the trial court must be affirmed unless the record here presents on its face fundamental error of law. Smith's counsel earnestly urge that this is the case—that the judgment is void and that the record so shows. They point out the following circumstances which appear in the transcript on this appeal: Commercial Credit Corporation's original petition, filed December 16, 1942, and upon which judgment against Smith was subsequently taken contained sworn averments that Smith resided in Dallas County and was "in the Armed Forces of the United States" stationed at Camp Pickett, Virginia. On April 23, 1943, an attorney for the Corporation made an affidavit that Smith's residence was unknown to the affiant and requested service of process by publication. In the final judgment dated June 24, 1943, it was recited that Smith was "in the armed services of the United States of America." A statement of evidence introduced at that trial recited that proof had been introduced establishing all the allegations in the plaintiff's original petition.

Thus, Smith's counsel urge, it appears on the face of the record that some six months before the entry of the judgment he seeks to reopen, Smith was a resident of Dallas County but absent in the Army and that his status was still that of a serviceman at the time of the judgment's entry. They correctly point out that:

"A soldier or sailor does not acquire a new domicile merely from being stationed at a particular place in line of duty. His domicile remains the same as that which he had when he entered the service, unless he shows a change by proof of clear and unequivocal intention." 15 Tex.Jur. 716. See also Therwanger v. Therwanger, Tex.Civ. App., 175 S.W.2d 704.

Upon these considerations, Smith urges that since his residence did not change from Dallas County merely because he entered the Army and since his place of residence will be presumed to remain the same until the contrary is shown, the sworn request for service of citation by publication which affirmed that Smith's residence was unknown was unfounded and improvidently made, and consequently the judgment rendered upon the service so obained was void. However, Smith faces the difficulty of relying upon presumptions only to support the facts which he claims will render the judgment void. The presumption of the continued existence of a fact once established goes no further than that the law presumes the state of things continues to exist as before until the contrary is shown, or until a different presumption arises. 20...