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

• Decision Date: 08 April 1926
• Docket Number: (No. 3202.)
• Citation: 283 S.W. 620
• Parties: FORT WORTH MUT. BENEV. ASS'N OF TEXAS v. PETTY.
• Court: Texas Court of Appeals

283 S.W. 620

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

(No. 3202.)

Court of Civil Appeals of Texas. Texarkana.

April 8, 1926.

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

Action by G. H. Petty against the Fort Worth Benevolent Association of Texas. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

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

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

HODGES, J.

The plaintiff in error is a mutual benevolent association organized under the laws of Texas, with its domicile at Fort Worth, Tex. This appeal is from a judgment rendered in favor of G. H. Petty by default awarding a recovery upon a policy of insurance theretofore issued upon the life of J. D. Petty by the plaintiff in error. It was alleged that the policy was issued on June 26, 1924, in consideration of certain payments, insuring J. D. Petty in a sum not to exceed $1,500. It is further alleged that J. D. Petty died in September, 1924, that he was a member in good standing at the time of his death, and his beneficiary was entitled to claim $1,500.

A citation was issued on April 25, 1925, which, after reciting the substance of the plaintiff's cause of action, directed the officer to summon the Fort Worth Mutual Benevolent Association of Texas in person by delivering "to said defendant, Fort Worth Mutual Benevolent Association of Texas, each in person, a true copy of this citation, together with a certified copy of the plaintiff's petition." The officer's return is as follows:

"Came to hand on the 9th day of April, 1925, at 8 o'clock a. m., and executed in Tarrant county, Texas, by delivering to each of the within named defendants, in person, a true copy of this citation (together with the accompanying certified copy of plaintiff's petition) at the following time and places, to wit: Fort Worth Mutual Benevolent Association of Texas, by serving F. M. Lipscomb, secretary, April 9th, 1925, at 9 a. m., Fort Worth.

"I actually and necessarily traveled 10 miles in the service of this citation, in addition to any other mileage I may have traveled in the service of other process in the same case during the same trip."

The case was called for trial in May, 1925. No answer having been filed by the plaintiff in error, defendant below, a judgment was rendered in favor of the plaintiff, Petty, for the sum of $1,500, and a writ of mandamus was awarded for its enforcement. This writ of error is...