Gilles v. Miners' Bank of Carterville, Mo.

• Decision Date: 08 March 1916
• Docket Number: (No. 892.)
• Citation: 184 S.W. 284
• Parties: GILLES v. MINERS' BANK OF CARTERVILLE, MO.
• Court: Texas Court of Appeals

184 S.W. 284

GILLES v. MINERS' BANK OF CARTERVILLE, MO.

(No. 892.)

Court of Civil Appeals of Texas. Amarillo.

March 8, 1916.

Error from District Court, Deaf Smith County; D. B. Hill, Judge.

Suit by the Miners' Bank of Carterville, Mo., against Albert C. Gilles and others. To review a judgment for plaintiff, the named defendant brings error. Judgment reversed, and cause remanded.

Russell & Dameron, of Hereford, for plaintiff in error. Gilliland & Estes, of Hereford, for defendant in error.

HALL, J.

Defendant in error bank filed this suit in the district court of Deaf Smith county, April 10, 1914, against P. L. Vasse, W. G. Bryant, and Albert C. Gilles, alleging that defendant Bryant sold to defendant Vasse certain lands in Deaf Smith county; that Vasse executed as part payment therefor a certain promissory note in the sum of $4,500; that thereafter Vasse conveyed by deed said lands to defendant Gilles, the latter assuming payment of said note; that Gilles was still the owner of the land; that Bryant assigned and transferred said note to plaintiff bank. The prayer was for citation, for judgment against each of the defendants, and foreclosure of the vendor's lien on the several tracts of land. The petition discloses the fact that plaintiff and all of the defendants are nonresidents of this state. Notices to serve nonresident defendants were issued and served upon the defendants P. L. Vasse and W. G. Bryant, October 27, 1914, defendant in error bank filed its first amended original petition, and no process was ever issued or served after the filing of said amendment. Appellant insists that the amendment describes altogether different land from that described in the original petition. Seven days after filing the amended petition, judgment by default was taken against all of the defendants, according to the prayer in the pleading. The judgment recites that "the defendants and each of them, though duly cited, having failed to appear and answer in this behalf," etc. The record contains no notice to serve nonresident defendant, nor shows that any other process was served upon plaintiff in error Gilles.

As said by Dunklin, Justice, in Bomar et al. v. Morris et al., 126 S. W. 663:

"* * * On appeal from a judgment by default prosecuted in the suit in which the same was rendered, the judgment will be reversed unless the record contains a citation showing due service thereof or an appearance by defendant, even though the judgment contains a recital that de...