Gourmet, Inc. v. Hurley, 19193

• Decision Date: 29 April 1977
• Docket Number: No. 19193,19193
• Citation: 552 S.W.2d 509
• Parties: GOURMET, INC., Appellant, v. Charles W. HURLEY, Appellee.
• Court: Texas Court of Appeals

Page 509

552 S.W.2d 509

GOURMET, INC., Appellant, v. Charles W. HURLEY, Appellee.

No. 19193.

Court of Civil Appeals of Texas, Dallas.

April 29, 1977.

Rehearing Denied May 26, 1977.

Joseph Hawryluk, Dallas, for appellant.

Harold E. Vanberg, Law Office of Davis A. Witts, Dallas, for appellee.

GUITTARD, Chief Justice.

This case is before us on writ of error from a default judgment against a nonresident corporation. Process was served under Texas Revised Civil Statutes Annotated, article 2031b (Vernon 1964), by delivering the citation, with a copy of the petition, to the Secretary of State, who forwarded the papers to the defendant corporation in New York. The principal question is whether service was ineffective because the petition does not allege the facts which authorize service on the Secretary of State under article 2031b. We hold that service is ineffective for that reason, even though an amended petition was filed before the default judgment was taken and even though sufficient evidence was offered at the hearing to establish the necessary jurisdictional facts.

Plaintiff asserts defendant's amenability to process under section 3 of article 2031b, which provides as follows:

Sec. 3. Any foreign corporation, association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-resident natural person is a party or is to be made a party. (Emphasis added.)

The original petition, which was attached to the process served on the Secretary of State and forwarded to defendant in New York, alleges:

Defendant is a New York corporation doing business in the State of Texas, and service of process may be had on its President, Earle R. MacAusland, at 777 Third Avenue, New York, New York 10017, or through the Secretary of State of the State of Texas, Austin, Texas.

In an amended petition filed on the day the default judgment was signed, plaintiff added allegations to the effect that defendant has "no designated registered agent for service of process in Texas and maintains no regular place of business." We have before us a statement of facts containing the evidence offered at the hearing, including exhibits which we assume, without deciding, to be sufficient to establish the jurisdictional allegations of the amended petition.

Defendant contends that the court acquired no personal jurisdiction over it because plaintiff failed to serve on the Secretary of State a petition containing allegations of the jurisdictional facts required by article 2031b. Plaintiff seeks to uphold the judgment on the ground that the statute does not require that the jurisdictional facts be alleged in the petition, but only that the trial court must be satisfied from the record made at the hearing that the necessary jurisdictional facts exist.

We conclude that defendant's position is correct. Although the statute does not by its terms require that the jurisdictional facts be alleged in the petition, the supreme court, in applying the statute, has declared that such facts must be alleged. In McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965), a default judgment was reversed on the ground that the petition did not allege that the nonresident defendant "does not maintain a place of regular business in this state or a designated agent upon whom service may be made," within article 2031b, section 3. The court said that the rule ordinarily applying to default judgments that pleadings must be construed in favor of the pleader does not apply with respect to jurisdictional facts, since there is no presumption of due service on direct review of a default judgment. 388 S.W.2d at 929. The court went on to say that since jurisdiction must affirmatively appear on the face of the record, plaintiff has the burden of making sufficient allegations to bring the defendant within its provisions. Id. at 930.

Again, in Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95 (Tex.1973), the supreme court declared:

A record showing of jurisdiction necessary to support a default judgment upon substituted service, such as we have here, must meet two major requirements: (1) The pleadings must allege facts which, if true, would make the defendant responsible to answer, or in the language of Rule 120a, contain allegations making the defendant "amenable to process" by the use of the long-arm statute; and (2) there must be proof in the record that the defendant was, in fact, served in the manner required by statute.

Plaintiff argues that neither McKanna nor Whitney is controlling here because neither dealt with a situation in which the jurisdictional facts omitted in the petition were supplied by proof at the default hearing. McKanna, he says, merely requires that the jurisdictional...