Gallagher v. Teuscher & Co.
| Decision Date | 20 April 1916 |
| Docket Number | (No. 117.) |
| Citation | 186 S.W. 409 |
| Parties | GALLAGHER v. TEUSCHER & CO. |
| Court | Texas Court of Appeals |
Appeal from Jefferson County Court; D. P. Wheat, Judge.
Suit by Teuscher & Co. against Bernard Gallagher, to revive a judgment. From a judgment of revival, defendant appeals. Affirmed.
David E. O'Fiel, of Beaumont, for appellant. Smith, Crawford & Sonfield, and B. F. Pye, all of Beaumont, for appellee.
This is a suit by Caroline Teuscher, an individual, suing under the firm name and style of Teucher & Co., against B. Gallagher, to revive a judgment of the justice court, precinct No. 1, Jefferson county, in cause entitled Teuscher & Co. v. B. Gallagher, No. 3522 on the nonjury civil docket of said justice court, rendered on the 29th day of July, A. D. 1907, for the sum of $120.80, besides interest from said date at 6 per cent. and costs of suit, which had become dormant, for the reason that no execution had been executed since the date of its rendition. Citation in proceedings to revive was issued by justice of peace on June 10, 1914, and served upon the defendant in said proceeding on the 11th day of June, 1914, returnable to the term of court beginning June 28, 1914. At a trial had in said cause on the 23d day of July, 1914, the justice of peace rendered judgment in favor of appellee, plaintiff below, reviving said judgment, from which said judgment the appellant appealed to the county court of Jefferson county. Upon a trial being had before the court in said cause in the county court at law of Jefferson county on the 28th day of October, 1915, judgment again was rendered in favor of appellee against appellant, reviving said judgment, and authorizing the issuance of execution thereon. Appellant in due time filed his motion for new trial, and on the 29th of October, 1915, the said motion was overruled, to which exception was taken, and notice of appeal given to this court. A request was filed for the trial judge to file his findings of fact and conclusions of law in the case. On the 8th day of November, 1915, the court filed his conclusions of law and fact, and on the 19th day of November, appellant filed his appeal bond, and the case is properly before this court for adjudication.
The appellant contends that said judgment attempted to be revived was void, for the reason that the court rendering the same was without jurisdiction over his person, for that no citation had been served upon him prior to the rendition thereof, and that he had not entered an appearance, nor waived the issuance of service of citation, and he also contends that the 4-year statute of limitation as to said judgment applies. Appellee contends that the appellant was attempting to set up in his answer defenses occurring prior to the rendition of the judgment, and that as a matter of law the plea of 4-year limitation was not available, and, third, that the appellant was attempting to impeach the judgment of a court valid on its face in collateral proceedings. Upon the trial, a request was made to the court that the testimony was insufficient to impeach the officer's return on the citation, which issued in the original suit, and showed that valid service had been made upon him. The court overruled appellant's plea of 4-year limitation, adopted the view taken of the law by appellee, and entered judgment in favor of appellee, plaintiff below.
By the appellant's first assignment, the action of the court below is called in question as being error in holding the evidence adduced by the appellant was insufficient to prove that citation had not been served upon him in said original suit, claiming that the undisputed testimony showed that the appellant had not been served with citation in said suit, and had no notice of said suit, and had not entered his appearance therein. There was no allegation that the judgment showed on its face that there was no service. It is well settled that the principles of estoppel attached to final adjudications are as operative and conclusive in this character of cases...
To continue reading
Request your trial
-
Harrison v. Sharpe
...S. W. 814; Godshalk v. Martin, 200 S. W. 535; Crawford v. Gibson, 203 S. W. 375; Swearingen v. Swearingen, 193 S. W. 442; Gallagher v. Teuscher & Co., 186 S. W. 409; McBride v. Kaulbach, 207 S. W. 576. So that the consideration of this assignment requires a summary of the evidence on this i......
-
Mendlovitz v. Samuels Shoe Co.
...W. 883; Kempner v. Jordan, 7 Tex. Civ. App. 275, 26 S. W. 870; Harrison v. Sharpe (Tex. Civ. App.) 210 S. W. 731; Gallagher v. Teuscher & Co. (Tex. Civ. App.) 186 S. W. 409. If solemn judgments, foreign or domestic, may be attacked except upon abundant and satisfactory evidence, their force......
-
Southwest Nat. Bank v. Cates
...N. & S. T. Ry. Co. (Tex. Civ. App.) 144 S. W. 364; Creosoted Wood Co. v. McKay (Tex. Civ. App.) 234 S. W. 587; Gallagher v. Teuscher (Tex. Civ. App.) 186 S. W. 409; Tammen v. Schaefer, 45 Tex. Civ. App. 522, 101 S. W. 468. The assignments attacking the judgment because same is not supported......
-
Creosoted Wood Block Paving Co. v. McKay
...on appellees Wagner and Stewart. Davis v. Robinson, 70 Tex. 394, 7 S. W. 749; Martin v. Burns, 80 Tex. 676, 16 S. W. 1072; Gallagher v. Teuscher & Co., 186 S. W. 409. Although no question is raised in reference to the manner in which appellant sought to make additional parties defendant by ......