Continental Oil & Gas Production Co. v. Austin

• Decision Date: 14 May 1926
• Docket Number: (No. 207.)
• Parties: CONTINENTAL OIL & GAS PRODUCTION CO. v. AUSTIN, Banking Com'r.
• Court: Texas Court of Appeals

17 S.W.2d 1114

CONTINENTAL OIL & GAS PRODUCTION CO. v. AUSTIN, Banking Com'r.

(No. 207.)

Court of Civil Appeals of Texas. Eastland.

May 14, 1926.

Error from District Court, Eastland County; Geo. L. Davenport, Judge.

Statutory action for the trial of right of property by Chas. O. Austin, Banking Commissioner, against the Continental Oil & Gas Production Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Sayles & Sayles, of Eastland, for plaintiff in error.

Spencer & Rogers, of San Antonio, for defendant in error.

RIDGELL, J.

This suit is a statutory action for the trial of right of property. The clerk of the district court of Eastland county issued an execution in favor of commissioner of banking against Robert D. Gordon, for $9,109.08, with 10 per cent. interest from October 10, 1924, and $8.30 court costs. The execution failed to state the court where the judgment was rendered, stating that the judgment was recovered in the Eighty-Eighth district court of ____ county. On April 25, 1925, sheriff of Eastland county levied execution on certain office furniture as the property of Robert D. Gordon.

The Continental Oil & Gas Production Company by its stockholders and agent, Mrs. G. B. Gordon, on May 6, 1925, made affidavit as required by law, claiming said office furniture as the property of such company, and gave a bond with C. U. Connellee and J. U. Johnson as sureties in the sum of $1,500, which bond was approved by the sheriff. The sheriff's return on execution recites the facts relative to claimant's affidavit and bond, and that he returned the execution unsatisfied, having delivered the furniture to the claimant as required by law.

This cause for trial of right of property was docketed by the clerk in the Ninety-First district court of Eastland county, under No. 11561, in the name of defendant in error herein versus plaintiff in error herein, as defendant.

On June 2, 1925, plaintiff and defendant appeared by their attorneys, and the cause was continued at the instance of plaintiff in error to the August term, 1925, of said court.

The court never directed written issues to be tendered as required by article 7411 of the Revised Statutes of 1925.

On August 22, 1925, Chas. O. Austin, banking commissioner, without any direction from the court to do so, filed an instrument designated "issues tendered by plaintiff."

Although the defendants have not neglected or refused to join issue under the direction of the court, such neglect or refusal to join issue under the direction of the court being a prerequisite to judgment against defendant, the court nevertheless on September 21, 1925, rendered judgment against defendant and its sureties, which judgment is insisted was a judgment by default.

The Continental Oil & Gas Production Company, and the sureties on claimant's bond, duly filed petition for writ of error and supersedeas bond, and the cause is now before this court for review.

The first proposition advanced by plaintiff in error is as follows: "The trial court did not have authority to render the judgment by default in this cause, because such trial court had never directed a written issue to be made up and defendant, Continental Oil & Gas Production Company had never neglected or refused to join issue under the direction of the court."

It is admitted that the trial court never directed issues to be made by the parties. The record shows that at the June term, 1925, of said court, to wit, on June 2d, all parties appeared in person and by attorneys, and that defendant in error requested setting for trial at the June term, but that the defendant then and there in open court protested the setting and requested the court to continue the cause to the August term, 1925, which verbal motion was sustained and the cause was continued.

Articles 7402 to 7410, Revised Civil Statutes 1925, provided privilege and procedure of parties claiming property levied upon under execution, sequestration, attachment, or other like writs.

Article 7411, provides: "At the first term of the court, thereafter, if both parties appear, the court or justice shall direct a written issue to be made up between the parties and tried as in other cases."

Article 7412 provides requisites of the issues.

Article 7413 provides: "If the plaintiff appears and" defendants fail "to appear or neglects or refuses to join issue under the direction of the court or justice within the time prescribed for pleading, the plaintiff shall have judgment by default."

Article 7414 provides: "If the plaintiff does not appear at the first term, the case shall be continued to the next term, * * * if he appears, the like proceedings may be had as at the first term; but if he does not then appear on or before the appearance day of the third term, he shall be non-suited."

Article 7416 provides that, when the property is taken from the possession of claimant, the burden will be...