Fleming v. Hernden

• Decision Date: 15 March 1978
• Docket Number: No. 6716,6716
• Citation: 564 S.W.2d 157
• Parties: John FLEMING and Kent Kidder, Appellants, v. A. L. HERNDEN, Appellee.
• Court: Texas Court of Appeals

Page 157

564 S.W.2d 157

John FLEMING and Kent Kidder, Appellants, v. A. L. HERNDEN, Appellee.

No. 6716.

Court of Civil Appeals of Texas, El Paso.

March 15, 1978.

Rehearing Denied April 5, 1978.

Craig L. Austin, San Antonio, for appellants.

Pepos S. Dounson, San Antonio, for appellee.

OPINION

OSBORN, Justice.

The Appellants in this case were cited by publication but did not answer. Judgment was entered against them after an answer was filed by an attorney ad litem appointed by the Court. The Appellants then filed an answer and a "Motion to Set Aside Default Judgment or Alternatively, Motion for New Trial" within ten days after the judgment. The motion was overruled, resulting in this appeal. We reverse and remand for a new trial.

In an amended petition, Appellee alleged a motel in San Antonio was conveyed to Russell and Joy Kerns, with a deed of trust lien being retained to secure a promissory note. After a default, the Kerns allegedly pledged their interest in certain realty in Bexar County and Willacy County to Appellee. Subsequently, the Kerns sold the property involved in the pledge to another party, and it was eventually conveyed to Appellants. The judgment in this case set aside these conveyances.

There is no procedure in Texas for a default judgment where citation is by publication. McCarthy v. Jesperson, 527 S.W.2d 825 (Tex.Civ.App. El Paso 1975, no writ). Nevertheless, we apply general rules applicable to default judgments since the Defendants did not appear and answer. While ordinarily presumptions are made in support of a judgment, including presumptions of due service of citation where the judgment so recites as in this case, no such presumptions are made in a direct attack upon a default judgment. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965). In a recent article, "Judgments by Default A Survey of Texas Law," by Pohl and Kirklin,31 Sw.L.J. 465 at 470-471 (1977), the authors, in discussing defects in citations, make the following comment:

"No judgment can be entered against a defendant who has not been duly served. Strict rules have been established by the courts for testing the validity of citations to insure that a defendant receives proper notice of any proceeding commenced against him. Thus, regardless of which method of service is utilized, the slightest defect in a citation may be fatal, for Texas courts traditionally have been quick to find errors in a citation sufficient to set aside a default judgment. * * * "

The citation by publication occurred in Bexar County and was directed to "John Fleming and Kent Ke dder." The citation as published referred to Mr. Kidder as "Kent Kedder," "Kent A. Dedder," and "Kent A. Kedder." The first point asserts that as to Kent Kidder this citation was defective and could not give notice to the actual defendant being sued, and therefore the judgment based upon such citation is erroneous. The Appellant relies primarily upon the holding in McRee v. Brown, 45 Tex. 503 (1876), where the Court held a judgment by default against Robert McRee could not be sustained on citation by publication to Robert McKee. The Court, in the opinion, noted that where citation is by publication rather than personal service, there is a greater need for the name to be correct.

In Hubner v. Reickhoff, 103 Iowa 368, 72 N.W. 540 (1897), the Supreme Court of Iowa discussed the rule of "idem sonans" in a case involving the validity of a divorce decree where the defendant had been served by publication. The defendant in the divorce case, Heindrick Keisel, had been served by a notice addressed to Heindrick Keesel. The Court concluded that the rule of "idem sonans" was not applicable and that the service on Mr. Keisel was void where the "i" had been changed to an "e" in his last name, and that a collateral attack could be made upon the divorce decree. Likewise, in our case, we have a citation in which an "i" was changed to an "e" in the last name of the defendant although in our case we have a direct rather than a collateral attack upon the judgment. We believe the citation directed to Kent Kedder was defective and the judgment based thereon was erroneous.

Appellee asserts that filing an answer and motion for new trial after the judgment invoked the jurisdiction of the trial court and no complaint may be made about the citation. He relies upon Ana-Log, Inc. v. City of Tyler,520 S.W.2d 819 (Tex.Civ.App. Tyler 1975, no writ). The opinion in that case makes it clear that after an answer is filed, a party cannot complain of subsequent proceedings on the grounds of a defective citation. Certainly, the Appellants have now become subject to the jurisdiction of the Court, but the pleadings after judgment do not cure all errors which resulted in the initial judgment. Upon remand, the parties will be before the Court without need for further citation.

Since this is a direct attack upon an...