Davenport v. Rutledge

• Decision Date: 24 May 1916
• Docket Number: (No. 1001.)
• Citation: 187 S.W. 988
• Parties: DAVENPORT v. RUTLEDGE.
• Court: Texas Court of Appeals

187 S.W. 988

DAVENPORT v. RUTLEDGE.

(No. 1001.)

Court of Civil Appeals of Texas. Amarillo.

May 24, 1916.

Appeal from Grayson County Court; Dayton B. Steed, Judge.

Action by W. C. Rutledge against Mrs. Lona Davenport. From judgment for plaintiff in the county court, declaring void a judgment for plaintiff by default in justice court, but rendering judgment for plaintiff on the merits, defendant appeals. Reversed and remanded, with instructions.

John T. Suggs and R. W. Stoddard, both of Denison, for appellant. James S. Kone, of Denison, for appellee.

HUFF, C. J.

The appellee instituted suit against appellant in the justice court, precinct No. 2, Grayson county, upon an account for services rendered as a physician to the minor son of appellant, who was injured by a railroad. In this suit service was had by publication, the appellant being a nonresident of the state. A writ of garnishment was sued out, against a national bank of Denison, who had on deposit funds belonging to appellant. She was sued and cited as Laura Davenport. Her name is Lona Davenport. The bank answered it had no funds belonging to Laura Davenport. The justice court, however, rendered judgment against the bank on its plea, and also at the first term after publication rendered judgment against the appellant in the original cause by default. There are several defects in the record shown in obtaining process, which were alleged and set out. Under the judgment against the bank in the garnishment the appellee collected from it the amount sued for as due him, and the costs, amounting to $199.40. In that suit, about six months after judgment, and under article 2026, R. C. S., appellant filed a bill of review and sought therein a recovery of the sum so collected by appellee. The trial court finds that the judgment was void, and proceeded to hear and determine the question whether appellant had a valid defense to the alleged cause of action of appeal, and determined that she had no defense, and rendered judgment that she was not entitled to recover anything by reason of the appropriation of the sum obtained from the bank upon the judgment and costs.

The appellee files a cross-assignment, asserting that the trial court erred in holding the judgment and proceeding void, because it is shown that the appellant had actual notice of the pendency of the suit. Whether the court was correct or not in holding the judgment void, we think he was correct in holding that appellant had the right to file her bill of review under the statute and to be heard upon the merits.

The appellant was not required to answer until the second term of the court after the required publication. The case should have been continued to perfect service. If this was a jurisdictional matter, the judgment would be void. Harris v. Hill, 54 Tex. Civ. App. 437, 117 S. W. 907; Insurance Co. v. Milliken, 64 Tex. 46. Whether void or voidable, a judgment so obtained would ordinarily be set aside upon appeal. Article 2330, R. C. S.; Irion v. Bexar County, 26 Tex. Civ. App. 527, 63 S. W. 550. The process giving the name of appellant erroneously would also reverse the case. Railway Co. v. Bloch Bros., 84 Tex. 21, 19 S. W. 300.

Upon service by publication, under article 2026, the defendant has two years in which to file a bill of review and obtain a new trial. The remedy given thereby is cumulative, or an additional remedy to an appeal, and peculiar to suits by publication. Kruegel v. Cobb, 58 Tex. Civ. App. 449, 124 S. W. 723.

The statutes relating to citation by publication are not liberally interpreted, but strictly construed, and a strict compliance with the essential requirements of the statute is required. Authorities supra; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682. In the case of Oden v. Vaughn, 34 Tex. Civ. App. 115, 77 S. W. 967, a default judgment, rendered before the time defendant was commanded to appear and answer, was held absolutely void. In Lash v. Warren (Sup.) 14 S. W. 694, a judgment was held erroneous entered the day after acceptance of service. Railway Co. v. Eastham, 54 S. W. 648.

Under the statute, the appellant had until the first day of the succeeding term to answer. The judgment was therefore improperly entered at the first term; in other words, there was no proper service had, and it has long been the rule that the defendant has the right to vacate the judgment when there was no service, even though the facts might warrant another judgment. Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 863; Fowler v. Morrill, 8 Tex. 153.

Appellee contends in this case that the appellant had actual notice of this suit and therefore a bill of review would not lie. Courts acquire jurisdiction over the person of defendant by service of process in the manner provided by law. Service may be waived by express stipulation in writing or by voluntary appearance of the party, either in person or by attorney. "But we know of no authority for holding in any case that actual knowledge of the existence of a suit or the issue of a writ will supply the want of service." Harrell v. Mexico Cattle Co., supra. It appears from the facts in this case, after appellant removed from Texas to Tennessee, appellee instituted his suit against her by publication. The...