Franks v. Montandon, 11805
| Decision Date | 17 March 1971 |
| Docket Number | No. 11805,11805 |
| Citation | 465 S.W.2d 800 |
| Parties | Q. S. FRANKS dba Q. S. Franks Demolishing Company, Appellant, v. Truman MONTANDON et al., Appellees. |
| Court | Texas Court of Appeals |
Richard E. Kammerman, Austin, for appellant.
No brief filed by appellees.
Appellees, the plaintiffs below, filed suit against the Appellant, defendant below, for breach of contract in July, 1969. The transcript discloses that the sheriff's office made one unsuccessful attempt to serve Appellant.
Subsequently, Appellees filed a motion for service under Rule 106, Texas Rules of Civil Procedure, for substituted service on Appellant . No affidavits were presented to the court nor was there any oral evidence presented regarding the impracticality of serving Appellant; however, the court issued its order permitting substitute service pursuant to Rule 106. The sheriff then served Appellant's son at Appellant's place of business. Appellant never knew of the suit before judgment nor received any official notice of it.
On May 12, 1970 Appellees took a default judgment against Appellant for $4,300. Appellant received a postcard on June 30, 1970 from the District Clerk's office informing him that this judgment had been rendered against him.
Appellant never participated in this cause in the trial court, and received notice of the default judgment too late to file a motion for new trial.
Consequently, within the six month period set out in Article 2249 et seq., Vernon's Ann.Civ.St., Appellant has filed his petition for writ of error with this Court to have the judgment below set aside.
Appellant is before us on one point of error, that the judgment entered by the trial court is void because the alleged service on Appellant pursuant to Rule 106, T.R.C.P. was defective, improper and inadequate in that the trial court did not consider any sworn testimony, written or oral, as to the impracticality of serving Appellant, or if it did consider oral testimony, Appellant cannot obtain a statement of facts of that testimony.
Rule 106, T.R.C.P., among other things, provides that where it is impractical to secure personal service on the defendant, the court, upon motion, may authorize service by leaving a copy of the citation, with petition attached, at the usual place of business of the party to be served or by delivering it to anyone over six teen years of age at the party's usual place of abode, or in any other manner which will be reasonably effective to give the defendant notice of the suit.
Since Rule 106 is in derogation of the constitutional mandates of due process, 1 the...
To continue reading
Request your trial
-
Wilson v. Dunn
...1979, no writ); Kirkegaard v. First City Nat'l Bank, 486 S.W.2d 893, 894-895 (Tex.Civ.App.--Beaumont 1972, no writ); Franks v. Montandon, 465 S.W.2d 800, 801 (Tex.Civ.App.--Austin 1971, no writ); Spencer v. Texas Factors, Inc., 366 S.W.2d 699, 700 (Tex.Civ.App.--Dallas 1963, writ ref'd n.r.......
-
Dosamantes v. Dosamantes
...alone, such service would not be sufficient to comply with Rule 106. Maiden v. Faris, Brown and Calder, Dallam's Tex.Rep. 535; Franks v. Montandon, 465 S.W.2d 800 (Tex.Civ.App., Austin 1971, no writ); Shaw v. Allied Finance Company, 330 S.W.2d 690 (Tex.Civ.App., Dallas 1959, rev. other grnd......
-
Johnston v. Johnston, 16014
...mode of service. Spencer v. Texas Factors, Inc., 366 S.W.2d 699 (Tex.Civ.App. Dallas 1963, writ ref'd, n. r. e.); See Franks v. Montandon, 465 S.W.2d 800, 801 (Tex.Civ.App. Austin 1971, no writ). The rule that the record must affirmatively show a strict compliance with the prescribed method......
-
Kirkegaard v. First City Nat. Bank of Binghamton, N. Y., 7407
...that 'affidavits are proper to invoke the authority of the Court under Rule 106 to enter an order for substituted service.' In Franks v. Montandon, 465 S.W.2d 800 (Tex.Civ.App., Austin, 1971, no writ), the court held invalid substituted service under Rule 106 where there was no evidence of ......