Hitt v. Bell
| Decision Date | 05 June 1940 |
| Docket Number | No. 8965.,8965. |
| Citation | 141 S.W.2d 726 |
| Parties | HITT v. BELL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Brown County; E. J. Miller, Judge.
Action by W. A. Bell against D. S. Hitt, Jr., and others on a note. From a judgment for plaintiff, defendant D. S. Hitt, Jr., appeals.
Affirmed.
Fowler Roberts, of Big Lake, for appellant.
E. M. Davis, of Brownwood, for appellee.
This appeal presents but one question. That is, whether the appellant prosecuted his suit diligently after it was filed, so as to toll the four-year statute of limitation (Art. 5527, Sec. 1, R.C.S.1925) as against his cause of action. The trial court found as a fact that he did, overruled appellant's plea of limitation, and rendered judgment against him; hence this appeal.
The history of the case and the undisputed facts are as follows:
On September 11, 1935, Bell filed suit against three defendants, including appellant, on a promissory note due on November 10, 1931. Citations were issued immediately to all three, duly served upon the other two defendants, one of whom resided in Brown County, and the other in Tom Green County. The petition alleged that appellant, the other defendant, resided in Howard County, and citation issued to that county, but was mailed to Big Lake in Reagan County, and there served upon appellant by a Reagan County officer, who returned it to the County Court of Brown County. No answer was filed by any of the defendants. In February, 1936, the plaintiff Bell took default judgment against all defendants, execution was issued, the judgment abstracted, and an abstract thereof filed in Reagan County, where appellant resided. After this was done, and within six months after the entry of that judgment, Hitt prosecuted a writ of error to this court, and we reversed said judgment as to him only because as to him the judgment was void for lack of service. See Tex.Civ.App., 111 S.W.2d 1164.
Upon return of the mandate from this court to the trial court, Hitt answered, setting up his plea of limitation and urging that the facts above outlined showed lack of diligence on appellee's part in prosecuting his suit against appellant; that the limitation statute was therefore not tolled; and that judgment should have been rendered for appellant.
When appellant herein sued out his writ of error on the former appeal on August 3, 1936, that constituted an appearance. Oetting v. Mineral Wells Crushed Stone Co., Tex.Civ.App., 262 S.W. 93; Ft. Worth Mut. Benev. Ass'n v. Petty, Tex.Civ.App., 293 S.W. 290. After judgment was entered in the original suit in February, 1936, nothing occurred to call appellee's attention to the irregularity of, or lack of, service upon appellant until he sued out his writ of error in August, 1936. When this was done the trial court, of course, had no jurisdiction over the case until that appeal was disposed of. Consequent...
To continue reading
Request your trial
-
McDonald v. Evans
...and the judgment of the trial court is affirmed. San Saba Nat. Bank of San Saba v. Parker, 135 Tex. 136, 140 S.W.2d 1094; Hitt v. Bell, Tex.Civ. App., 141 S.W.2d 726; Long-Bell Lumber Co. v. Bynum, 138 Tex. 267, 158 S.W.2d ...
-
Tisdale v. Georgia-Pacific Corp.
...(Tex.Civ.App.--Waco 1973, no writ) (citing cases). Moreover, this issue is ordinarily one of fact to be determined by the jury. Hitt v. Bell, 141 S.W.2d 726, 728 (Tex.Civ.App.--Austin 1940, no writ). Beavers reversed and remanded for trial the issue whether a plaintiff had used reasonable d......