Delaware Ins. Co. v. Hutto

• Decision Date: 14 May 1913
• Parties: DELAWARE INS. CO. v. HUTTO.
• Court: Texas Court of Appeals

159 S.W. 73

DELAWARE INS. CO. v. HUTTO.

Court of Civil Appeals of Texas. Austin.

May 14, 1913.

On Motion for Rehearing, June 18, 1913.

Error to District Court, Coleman County; John W. Goodwin, Judge.

Action by M. J. Hutto against the Delaware Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

William Thompson, of Dallas, and Snodgrass & Dibrell, of Coleman, for plaintiff in error. Woodward & Baker, of Coleman, and J. E. Brown, of Brady, for defendant in error.

RICE, J.

This writ of error was sued out by plaintiff in error to reverse a judgment by default, rendered in favor of defendant in error, against it on a fire insurance policy, on the ground chiefly that said judgment was rendered without legal service, and that it had a meritorious defense, which it was prevented from setting up without fault on its part.

The petition alleged that the firm of Dumas, Zimmerman & Dibrell, composed of L. M. Dumas, R. E. L. Zimmerman, and Geo. Dibrell, was the local agents of plaintiff in error; and it questioned the sufficiency of the original return on the citation to support a judgment by default. The return shows that "citation came to hand on the 29th day of June, 1912, at 10 o'clock a. m., and was executed on the 29th day of June, 1912, at 10:30 o'clock a. m., by delivering to L. M. Dumas, local agent for Delaware Insurance Company, in the Coleman National Bank in the town of Coleman, Coleman county, Tex., the within named defendant in person, a true copy of this writ." Before the motion to set aside the default judgment was passed upon by the court, defendant in error was permitted to amend said return on the citation, and the same was amended as follows, to wit: "Came to hand on the 29th of June, 1912, at 10 o'clock a. m., and executed on the 29th day of June, 1912, at 10:30 o'clock a. m. by summoning the Delaware Insurance Company, the within named defendant, by delivering to L. M. Dumas, its local agent in the town of Coleman, Coleman county, Tex., in person, a true copy of this writ," duly signed, etc. "Any mistake or informality in the return may be corrected by the officer at any time under direction of the court." R. S. 1911, art. 1879. We think the original return in this case was sufficient, but the amendment, which is permissible, cured the error, if any there was, in the original; for which reason this objection must be overruled.

With reference to the second question, it may be said that if it be admitted that plaintiff in error is shown to have had a meritorious defense to any portion of the cause of action asserted against it, then we think it appears that it was clearly guilty of negligence in not pleading it. The motion to set aside a judgment by default must not only show a meritorious defense, but a good excuse for failure to answer at the proper time. See Watson v. Newsham, 17 Tex. 438; Foster v. Martin, 20 Tex. 122; Gillaspie v. City of Huntsville, 151 S. W. 1115. It is not asserted in this case that Dumas, who was served, was not the local agent of plaintiff in error; but it appears that neither he nor his firm had any right to employ counsel, but that the firm of Gross R. Scruggs & Co., who were general agents, were charged with this duty, and that they were not notified of the pendency of said suit, for which reason no answer was filed. It is alleged in said motion that it was Dumas' duty to forward such citation to said general agents; and, while it is alleged that he did this, yet such fact was not proven by his affidavit, nor was it shown when it was forwarded, although it appears that citation was served on Dumas on the 29th of June, and no judgment was taken until the 6th of November thereafter; and the affidavit does not exclude the idea that such citation may have been forwarded by him after judgment by default had been taken. The motion for new trial was not verified by Dumas or Gross R. Scruggs & Co., but by John M. Dawson, who is not shown to have had any connection with said transaction. We think this showing does not excuse plaintiff in error for failing to present its defense. We do not think there is any merit in plaintiff in error's contention that service of citation upon one member of a firm of local agents was not sufficient, under the law, to give the court jurisdiction to render judgment by default. In Continental Insurance Co. v. Millikean, 64 Tex. 47, it was held that service on one member of the firm of local agents was...