G., H. & S. A. R'Y Co. v. Gage, Case No. 5157.

• Decision Date: 03 January 1885
• Docket Number: Case No. 5157.
• Citation: 63 Tex. 568
• Court: Texas Supreme Court
• Parties: G., H. & S. A. R'Y CO. v. C. H. GAGE.

63 Tex. 568

G., H. & S. A. R'Y CO.

v.C. H. GAGE.

Case No. 5157.

Supreme Court of Texas.

Dec. 19, 1884.

Jan. 3, 1885.

APPEAL from Uvalde. Tried below before the Hon. T. M. Paschal.

The appellee sued on a verbal contract with the agent of the appellant to recover for work done. After several pleas and exceptions had been overruled the appellant filed its answer to the merits, consisting of a general denial; also denying specially that appellee was engaged or contracted with by appellant to do any of the work described in the petition, alleging that “all of the work of the character described in plaintiff's petition, authorized by and done for the defendant company in the localities designated in the plaintiff's petition, was done by the contractors” Henry & Dilley; “that plaintiff was, when said work was done, an employee and working for said firm, and not on his own account as contractor;” that for all of said work “this company has paid said Henry & Dilley in accordance with their said contract,” and that if plaintiff did any of the work described, it was done for said firm, by whom, as defendant is informed and believes, plaintiff has been fully paid. Therefore appellant alleged, in its answer, that Henry & Dilley, giving their individual names and places of residence, were necessary parties defendant, and prayed the court to make them parties, and that they be cited as such.

The prayer to make Henry & Dilley parties having been overruled, and the court also having overruled defendant's application for a continuance, the case proceeded to trial before the court, and judgment was rendered for plaintiff and against the defendant for the sum of $27,333.40.

The first citation was served in San Antonio on February 3, 1883. The second citation was served in Uvalde on February 24, 1883. The application for continuance was presented on April 11, 1884, two months and eight days after the first, and one month and eighteen days after the second, service of citation.

The application for continuance was for the want of the testimony of James Converse, the chief engineer and superintendent of construction of defendant, who resided in Harris county, Texas; George M. Dilley, a resident of Anderson county, Texas; and J. A. Henry, who resided in the county of Wills, in the state of Illinois. The application, in accounting for the failure to use diligence to get James Converse's testimony, says: “That within a few days after the service of the citation on the local agent of this company in Uvalde county, and before the same had been communicated to the principal or even the subordinate officers of the company, or to any of its principal officers, and before any measures could be taken to secure the depositions of said witness, himself, ignorant of such service, went to the state of California on important business of this company, where he was detained for several weeks, and on his return therefrom went immediately into the Republic of Mexico, where he still is; that there was not sufficient time between the service of said citation and the departure of said witness for California to have procured his testimony by depositions, nor during the time of his stay in Texas after his return from California and before his departure for Mexico, and that said witness has not to the present time returned from Mexico, but is expected daily, and defendant says that no diligence he could have used would have procured the testimony of said witness to this term of the court.”

The application, in accounting for the failure to use diligence to get the testimony of George M. Dilley, says: “That defendant, being uninformed of said citation, was only apprised of the same upon his attorneys reaching this court and finding the return thereof of date the first day of this term; that it was then too late to take said depositions; but, relying on the attendance of said witness, was only this day informed that the cause of the detention of said witness was serious illness, and no diligence defendant could have used after knowledge of service of the said [second] citation could have procured the deposition of said witness.”

The application, in accounting for the failure of defendant to use the statutory diligence to procure the testimony of J. A. Henry, says: “That the witness J. A. Henry has been out of the state and continuously absent therefrom since service of said [second] citation; that defendant, by its attorneys, have (has) made diligent inquiry for the residence of said witness, but while informed that his residence was in Joliet, Illinois, only to-day ascertained that it was in Wills county of said state; that said witness will testify to the same facts as his partner, George M. Dilley, and no diligence plaintiff (defendant?) could have used would have procured the testimony of said witness in time for trial at this term.”

Waelder & Upson, for appellant, on the overruling of the application for continuance, cited: Art. 1277, R. S.; Payne v. Cox, 13 Tex., 480;Price v. Lauve, 49 Tex., 81; Railroad Co. v. Henning, 52 Tex., 474.

They also cited, on the question of parties: Art. 1209, R. S.; Baily v. Trammell, 27 Tex., 326;Allison v. Shilling, 27 Tex., 453;Denison v. League, 16 Tex., 408;Kegans v. Allcorn, 9 Tex., 34;Holloway v. Blum, Galveston term, January 22, 1884 ;3 Tex. L. Rev., 55.

Osceola Archer, for appellee, on refusing the continuance, cited: Supreme Court Rules, Nos. 24, 25 and 26 (47 Tex., 602); R. S., art. 1359; Morris v. Files, 40 Tex., 377-8;Campion v. Angier, 16 Tex., 93, 94;Harrison v. Cotton, 25 Tex., 53, 54;Runnels v. Belden, 51 Tex., 48;Lewis v. Williams, 15 Tex., 48, 49;Carter v. Eames, 44 Tex., 547;Williams v. Edwards, 15 Tex., 43;Meredith v. State, 40 Tex., 482, 483;Trammell v. Pilgrim, 20 Tex., 160;Hensley v. Lytle, 5 Tex., 499;Price v. Lauve, 49 Tex., 81, 82.

On defect in bill of exceptions, he cited: Underwood v. Coolgrove, 59 Tex., 171;Johnson v. Crawl, 55 Tex., 576;Greenwade v. Walling, 30 Tex., 378;Hagerty v. Scott, 10 Tex., 532-3.

On the question involving proper parties, he cited: R. S., art. 1209; Burditt v. Glasscock, 25 Tex. Sup., 48; Williams v. Wright, 20 Tex., 502, 503;Smith v. Allen, 28 Tex., 501;Robb v. Smith, 40 Tex., 95; Holloway v. Blum, January, 1884, vol. 3, No. 54, Tex. L. Rev., p. 55 ; Van Bibber v. Geer, 12 Tex., 17, 18; Story's Eq. Jurisp. secs. 821, 822; Story's Eq. Pl., secs. 291-293; Wait's Actions and Defenses, vol. 4, pp. 149, 151, sec. 1.

STAYTON, ASSOCIATE JUSTICE.

The first service of citation was by leaving a copy of the citation and petition at the office of the appellant, in the city of San Antonio, during office hours.

A plea was filed, under oath, stating that the principal office of the company was, and at all times had been, in the city of Houston, Harris county, Texas, and that at no time had such office been in the city of San Antonio, and it was asked that the service of citation be set aside. To this plea an exception was sustained, and we are of the opinion that this ruling was erroneous, for there is no authority for making service at an office of a corporation other than its principal office, unless the service be made on the local agent representing a company in the county in which a suit is brought. R. S., 1223.

Every railway company is required to keep a public office, which in the statute referred to is styled its principal office, and of its location to give notice. R. S., 4115-4122.

It, however, does not necessarily follow that this error will requirethe reversal of the judgment, for, subsequently to the time that service was attempted, as before stated, another citation issued, directed to the sheriff of the county in which the suit was pending, and on February 24, preceding the trial on April 6, service of that citation was made; the sheriff's return being that he delivered “a true copy of this citation to F. Voelker in person, the local agent representing the within named defendant, the Galveston, Harrisburg & San Antonio Railroad Company, in the county of Uvalde.”

There was a motion to quash the citation and return, the grounds of which were as follows:

“1. The petition does not allege that there is a local agent of the company in Uvalde county, nor pray for service of citation on one, but seeks service of citation by leaving a copy at the principal office, nor is there amendment to justify issue of citation to Uvalde county.

2. The citation itself does not direct how service should be had, or that it should be had on an agent, designating him.

3. The return does not show that F. Voelker was such an agent as service might be legally had on.”

The motion was overruled.

The petition averred that the appellant had an agent in the county of Uvalde, but it did not state who the local agent was; and the citation directed the sheriff to summon the Galveston, Harrisburg & San Antonio Railway Company to appear at the time fixed by law for the term of the district court for Uvalde county.

The citation, however, gave no specific direction upon whom or in what manner it was to be served.

There is no doubt that the better practice requires that the fact that there is a local agent of the corporation in the county in which the suit is brought should be stated in the petition, and that the name of such agent should be given; and further, that the citation should direct the sheriff or other officer to execute it by serving a copy of the citation on the named local agent. Sun Mutual Ins. Co. v. Seeligson, 59 Tex., 6;Galveston & Red River R'y Co. v. Shepherd, 21 Tex., 277.

Upon a petition containing such averment, and citation giving such direction, it has been held that a judgment by default might be taken without proof that the person served...