Fort Worth Mut. Benev. Ass'n. v. Petty

• Decision Date: 20 January 1927
• Docket Number: (No. 3340.)
• Citation: 293 S.W. 290
• Parties: FORT WORTH MUT. BENEV. ASS'N. v. PETTY.
• Court: Texas Court of Appeals

293 S.W. 290

FORT WORTH MUT. BENEV. ASS'N. v. PETTY.

(No. 3340.)

Court of Civil Appeals of Texas. Texarkana.

January 20, 1927.

Error from District Court, Cherokee County; C. A. Hodges, Judge.

Suit by G. H. Petty against the Fort Worth Mutual Benevolent Association. Judgment for plaintiff, and defendant brings error. Affirmed.

On April 29, 1925, G. H. Petty filed this suit in the district court of Cherokee county against the Fort Worth Mutual Benevolent Association to recover upon a policy of insurance issued upon the life of J. D. Petty, who died in September, 1924. In May, 1925, the case was called for trial, and, no answer having been filed, a judgment by default was rendered against the defendant in favor of the plaintiff. That term of court adjourned on September 5, 1925. On September 11, 1925, the defendant prosecuted a writ of error from that judgment to this court upon the ground that no valid citation was ever issued to the defendant conferring jurisdiction in the trial court to render a personal judgment. This court sustained the contention made, quashed the citation, and reversed the judgment and remanded the cause. Fort Worth Mut. Benev. Ass'n v. Petty (Tex. Civ. App.) 283 S. W. 620. The next term of the district court began December 14, 1925, and was authorized to continue until the second Monday in February, 1926. The mandate of the appellate court was issued on April 8, 1926, and was filed in the district court on May 25, 1926; and on June 1, 1926, the clerk of the district court prepared and forwarded a copy of the mandate to the attorney representing the association in the prosecution of the writ of error. The term of the district court began by law on May 17, 1926, and was authorized to continue in session until September. On July 27, 1926, the court called the case, and judgment was rendered against the association. No new citation was issued, and the association had filed no answer, and there was no consent to judgment being rendered. On October 26, 1926, the association sued out the present writ of error to this court, insisting in this court that the judgment by default, for the nonappearance of the appellant, was illegally taken at the term of the court begun and in session at the time the mandate was filed. The contention is that no judgment by default can be taken against the defendant until after the appearance day of the term of court succeeding the term at which the mandate is filed.

Marvin Roberson, of Fort Worth, for plaintiff in error.

Perkins & Perkins, of Rusk, for defendant in error.

LEVY, J. (after stating the facts as above).

The mandate was filed in the trial court on May 25, 1926, after the term began on May 17, 1926. A copy of the mandate, with the date of filing in the trial court, was made and forwarded to the defendant on June 1, 1926. The case was regularly called for trial on July 27, 1926, and judgment by default was rendered. The precise question for decision arising in the special circumstances of the case is, Could judgment be legally taken at the term of the court at which the mandate was filed? If the defendant was not required to answer, or take the consequence of default, at the term of the court in which the mandate was filed, then the judgment in this case was not legally authorized and it must be vacated, there being no consent to judgment being rendered; otherwise,...