Fort Worth Lloyds v. Johnson
| Decision Date | 12 June 1939 |
| Docket Number | No. 5039.,5039. |
| Citation | 129 S.W.2d 1157 |
| Parties | FORT WORTH LLOYDS v. JOHNSON. |
| Court | Texas Court of Appeals |
Atwood McDonald, of Fort Worth, for plaintiff in error.
R. D. Oswalt, of Crowell, for defendant in error.
The plaintiff in error, Fort Worth Lloyds, alleged to be an association of underwriters organized under Chapter 19, Title 78, of the Revised Civil Statutes of Texas, Vernon's Ann.Civ.St. art. 5013 et seq., with its office in Tarrant County, Texas, prosecutes this writ of error seeking to reverse a default judgment recovered against it by the defendant in error, George W. Johnson, in the sum of $350.00. The attack made is based on the alleged insufficiency of the citation to support the default judgment. The parties hereafter shall be designated as in the trial court.
George W. Johnson, as plaintiff in the trial court, brought this suit originally against the Trinity Universal Insurance Company to enforce collection of a $350 fire insurance policy upon a Ford Coupe automobile which had been destroyed by fire. Thereafter it developed that the Fort Worth Lloyds had made a loan to the plaintiff in the sum of $100 and in connection therewith had taken a mortgage from Johnson to secure the debt. It was also alleged that Fort Worth Lloyds insured the automobile for its actual value against loss by fire, said policy containing a loss payable clause in favor of Fort Worth Lloyds. By the provisions of the former policy issued by the Trinity Universal Insurance Company recovery thereon was prohibited if at the time of a loss there existed other insurance upon the automobile or if the property was subjected at such time to any lien or mortgage. The plaintiff filed his first amended original petition making Fort Worth Lloyds also a party defendant, seeking recovery against such association in the sum of $350 in the event he failed to recover against the Trinity Universal Insurance Company. In this amended petition he alleged that the issuance of the second policy was without his knowledge or consent.
The plaintiff attempted to obtain service upon the defendant, Fort Worth Lloyds, under Article 5021, Vernon's Annotated Revised Civil Statutes of Texas, one of the two methods therein provided for such service being that the summons and process shall be served in duplicate upon the Commissioner of Insurance who, in turn, is required to send one copy by registered mail to the attorney for the underwriters. The county clerk of Hardeman County issued the citation to the sheriff of Travis County, commanding him to summon R. L. Daniel, Chairman of the Board of Insurance Commissioners, to appear at the next regular term of the county court of Hardeman County to answer a suit wherein George W. Johnson was plaintiff and the "Trinity Universal Insurance Company et al., defendants." At no place in the citation proper did the name of the Fort Worth Lloyds appear. The citation recited that the nature of plaintiff's demand was contained in the certified copy of the "original petition" of the plaintiff. The sheriff's return showed service by delivery of two true copies of the citation to the said R. L. Daniel, together with the accompanying certified copies of the "plaintiff's petition."
The defendant, Fort Worth Lloyds, did not file an answer and did not enter an appearance in the suit. The trial court rendered judgment by default in the sum of $350 for the plaintiff against the defendant, Fort Worth Lloyds, but denied the plaintiff any recovery as against the defendant, Trinity Universal Insurance Company, which had filed an answer and entered an appearance in that court. The plaintiff has filed no brief in this court and no complaint is made by him or by the defendant, Fort Worth Lloyds, of the judgment in favor of the Trinity Universal Insurance Company. Such defendant was not made an obligee in Fort Worth Lloyds' supersedeas bond. Therefore, in our disposition of this writ of error the judgment in favor of the Trinity Universal Insurance Company will not be disturbed.
Although the judgment...
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Bynum v. Davis
...Albert K. Daniel. Although the petition in said Cause named the parties, the citation was still insufficient. Fort Worth Lloyds v. Johnson, Tex.Civ.App.1939, 129 S.W.2d 1157 no writ Rule 101, T.R.C.P., provides, among other things, that 'The citation shall be styled 'The State of Texas' and......
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Anderson v. Shelton
...the abbreviation is insufficient to designate parties not specifically named. Lyman v. Milton, 44 Cal. 630; Fort Worth Lloyds v. Johnson, Tex.Civ.App., 129 S.W.2d 1157. The notice of expiration of the period of redemption did not include the name of Theodore N. Shelton, one of the record ow......
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...of record and may not be expanded in its scope to include all defendants named in the plaintiffs' petition. See Fort Worth Lloyds v. Johnson, 129 S.W.2d 1157, 1158 (Tex.Civ.App.1939, no writ) (under statute requiring citation to state names of all parties, citation designating certain compa......
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McFadden v. Mid-States Mfg. Corp.
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