Ferguson v. Estes & Alexander

• Decision Date: 22 May 1919
• Docket Number: (No. 984.)
• Citation: 214 S.W. 465
• Parties: FERGUSON et al. v. ESTES & ALEXANDER.
• Court: Texas Court of Appeals

214 S.W. 465

FERGUSON et al. v. ESTES & ALEXANDER.

(No. 984.)

Court of Civil Appeals of Texas. El Paso.

May 22, 1919.

On Rehearing, June 12, 1919.

Second Rehearing Denied June 30, 1919.

Appeal from Taylor County Court; E. M. Overshiner, Judge.

Action by Estes & Alexander against James Ferguson, John Ferguson, and another. Citation not having been served on the first-named defendant, the cause was dismissed as to him, and, from a judgment for plaintiffs against the remaining defendants, they appeal. Reversed and remanded for retrial.

Joe C. Randel, of Hamlin, for appellants.

J. W. Moffett, of Abilene, for appellees.

HIGGINS, J.

Appellees filed this petition on August 8, 1916, in the county court of Taylor county, against James and John Ferguson and J. W. Cornelius, to recover upon an open account for medical services, etc., rendered in January and February, 1915, to the wife of James Ferguson, which services were rendered at the request of all defendants and for the payment of which they all became liable. After service of citation in November, 1917, defendants John Ferguson and Cornelius pleaded the two-year statute of limitation. This plea was predicated upon the theory that more than two years had elapsed before the issuance and service of citation. No service being obtained upon James Ferguson, the suit was dismissed as to him, and upon trial before the court judgment was rendered in favor of plaintiffs against John Ferguson and Cornelius, who appeal. The material facts found by the court may be summarized as follows: That the petition was filed August 8, 1916, and the commencement of the suit was upon that date; that no request was made by plaintiffs or their attorney to the clerk not to issue or hold up issuance of citations, and citations were issued by the clerk on August 9, 1916; that these citations were not served and were found among the papers of the cause; that on October 17, 1917, citations were again issued which which were served on John Ferguson on November 5, 1917, and upon Cornelius on November 3, 1917. John Ferguson had resided in Jones county for 10 years, and Cornelius in the same county for more than 15 years. For a short time after the filing of the suit, John Ferguson ran a gin in Fisher county, Tex. The only citations served upon John Ferguson and Cornelius were those issued October 17, 1917. Upon the facts stated, the court concluded as a matter of law that the account was not barred by the statute of limitations.

The evidence discloses that about August, 1916, plaintiffs placed the account for suit in the hands of their attorney, Mr. De Bogary, and thereafter gave the matter no further attention, assuming that their attorney would give the matter all necessary attention. The attorney filed the petition as stated on August 8, 1916. Bertha Early, deputy clerk, testified that she prepared citations dated August 9, 1916, and signed the same. She refers in her testimony to her action as the issuance of the citations, but stated that she did not know what was done with them, or whether they were ever delivered to Mr. De Bogary. The blank returns upon the citations are not signed by any officer, and there is no evidence that they ever passed out of the hands of the clerk; but, as shown by the court's findings, they were found among the papers of the cause.

Opinion.

It is well settled by the decisions of this state that the statute of limitation is not interrupted by the mere filing of the petition with the clerk. In Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645, it was held that, not only must this initial step be taken, but there must be a bona fide intention that the process shall be served at once upon the defendant. In that and a number of other cases where there was delay in the issuance of citation, it was held that, in the absence of some valid excuse for such delay, the statute ran until the citation was issued and service obtained, or a bona fide effort made to obtain service. In Wood v. Ry. Co., 15 Tex. Civ. App. 325, 40 S. W. 25, it was said:

"The plaintiff can be guilty of other conduct or laches which will fail to arrest the running of the statute. The filing of the petition with the clerk of the proper court is the commencement of the suit (Rev. St. 1895, art. 1177), and will arrest the running of the statute if there is a bona fide intention on the part of plaintiff to prosecute his suit, and he uses reasonable diligence to have process issued and served at once. When a petition is filed, it is the duty of the clerk to issue citation immediately, and the plaintiff has the right to prosume that the clerk will issue within a...