Hall v. McKay

• Decision Date: 24 October 1890
• Citation: Hall v. McKay, 14 S.W. 615, 78 Tex. 248 (Tex. 1890)
• Parties: HALL v. McKAY.
• Court: Texas Supreme Court

14 S.W. 615

HALL v. McKAY.

Supreme Court of Texas.

October 24, 1890.

Appeal from district court, Wichita county; P. M. STINE, Judge.

L. T. Miller, for appellant. A. S. James, for appellee.

HENRY, J.

This suit was commenced by appellee to recover upon a judgment rendered in his favor, and against appellant, by the court of common pleas of Jefferson county, Ky. At the October term, 1888, an order was entered, at the instance of plaintiff, dismissing the cause. At the same term of the court, an order was made that "said cause be reinstated on the docket upon the condition of plaintiff paying all costs accrued in said cause." Afterwards judgment for the amount of his demand was rendered in favor of plaintiff. The judgment upon which the suit was brought was properly described in the petition, and the court did not err in overruling an exception to the petition taken on the ground that no copy of the record was attached as an exhibit to it. Appellant contends that the order reinstating the cause was conditional upon the payment of the costs at the term at which the order was made, and that, because the costs were not so paid, a motion made by him at the ensuing term to strike the cause from the docket ought to have prevailed. The order did not direct when the costs were to be paid, and it amounted to no more than to tax the plaintiff with the payment of the costs. It reinstated the cause for all purposes. Fenn v. Railway Co., 76 Tex. 380, 13 S. W. Rep. 273.

The defendant contended that he was not served with notice of the Kentucky suit, and that the court rendering the judgment never acquired jurisdiction over him. The plaintiff introduced a duly-certified copy of the record showing proper service. Upon that issue, and upon that of the identity of the person summoned in that suit with the defendant in the one on trial, the plaintiff introduced the deposition of the officer who executed the process. The witness, in reply to interrogatories propounded by plaintiff, testified: "I have known him [meaning defendant] about 18 years, and had very friendly acquaintance with him." In a cross-interrogatory, embracing a large number of questions, the following questions to said witness were included: "What was the personal appearance of the man you served as R. D. Hall? What is the personal appearance of the defendant?" The witness answered: "His personal appearance [referring to the man he served] was a man of medium height, dark complexion, and long, dark...