Flynt v. City of Kingsville
| Decision Date | 15 May 1935 |
| Docket Number | No. 1547-6343.,1547-6343. |
| Citation | 82 S.W.2d 934 |
| Parties | FLYNT v. CITY OF KINGSVILLE. |
| Court | Texas Supreme Court |
Suit by the City of Kingsville against T. A. Flynt and wife. The Court of Civil Appeals reversed a joint and several default judgment as to the wife, but affirmed the judgment as to defendant named , and such defendant brings error.
Judgments of the District Court and Court of Civil Appeals reversed, and cause remanded.
E. B. & Howell Ward, of Corpus Christi, for plaintiff in error.
E. H. Crenshaw, Jr., and C. L. Gordon, both of Kingsville, for defendant in error.
RYAN, Commissioner.
This suit was instituted in the district court of Kleberg county, by the city of Kingsville, against T. A. Flynt and his wife to recover a paving assessment against them as abutting property owners. No contract or lien was signed by them. The defendants did not appear or answer, and judgment by default was rendered against them, jointly and severally, for $197.76, with interest at the rate of 7 per cent. per annum, for $100 as an attorney's fee incurred by plaintiff, taxed as costs of suit, and foreclosure of lien upon certain real estate situated in the city of Kingsville.
On writ of error sued out by Flynt and wife to the Court of Civil Appeals, the judgment was reversed and rendered in favor of the wife, affirmed as to T. A. Flynt, and costs of appeal taxed against the city. 50 S.W.(2d) 414.
Application for writ of error was granted by the Supreme Court, on the first assignment, as follows: "The Court of Civil Appeals erred in affirming the judgment against T. A. Flynt, because there was no appearance by and the record shows no proper service upon him to warrant the rendition of a judgment against him by the trial court."
This assignment is sustained. The record here contains no copy of any citation or instrument to show an appearance by the defendants in the trial court.
A judgment by default without proper service of citation is void. State Mortgage Corp. v. Traylor, 120 Tex. 148, 36 S. W.(2d) 440; Levy v. Roper, 113 Tex. 356, 256 S. W. 251. On a direct attack, such as this, the usual presumption of service because of the recital in the judgment, "that defendants though duly and legally cited to appear and answer, came not but wholly made default," does not obtain, and the error resulting from the absence in the record of the necessary showing necessitates a reversal of the judgment.
The court held in Burditt v. Howth, 45 Tex. 466, on appeal, where the record does not show service on, or appearance by, the defendants, a recital in the judgment by default that the defendants were duly served with process will not be considered evidence of service so as to sustain the judgment; otherwise, when the judgment is collaterally attacked.
On an appeal from a default judgment the record must show an...
To continue reading
Request your trial
-
Cadillac Ins. Co. v. L.P.C. Distributing Co. Inc.
...is a lack of jurisdiction apparent on the face of the record which would vitiate the trial court's judgment. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935); Texaco Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, writ ref'd n.r.e.); Doak v. Biggs, 235 S.W. 957 (Tex.Civ.App......
-
State v. Bristol Hotel Asset Co.
...29. See id. at 949. 30. Id. at 951. 31. 19 S.W. at 519. 32. 65 S.W.3d at 647 (Baker, J., dissenting). 33. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934, 934-35 (1935). 34. Tex.R.App. P. 35. TEX. PROP.CODE § 21.016(c). 36. Id. § 21.016(d)(1). ...
-
American Universal Ins. Co. v. D.B. & B., Inc.
...v. Placke, 698 S.W.2d 362, 363 (Tex.1985); Martin v. Sheppard, 201 S.W.2d 810, 812 (Tex.1947); Flynt v. City of Kingsville, 82 S.W.2d 934, 934-35 (Tex.Comm'n App.1935, opinion adopted); see also Hanover Modular Homes, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 101 (Tex.Civ.App.--Co......
-
Country Clubs, Inc. v. Ward
...not be sustained by the judgment recitals but must appear affirmatively on the face of the record. Flynt v. City of Kingsville,125 Tex. 510, 82 S.W.2d 934 (Tex.Com.App.1935, opinion adopted); Harris v. Hayles, 433 S.W.2d 250 (Tex.Civ.App., Texarkana The record in this case, when examined ca......