Joseph v. Kiber

• Decision Date: 27 March 1924
• Docket Number: (No. 1057.)
• Citation: Joseph v. Kiber, 260 S.W. 269 (Tex. App. 1924)
• Parties: JOSEPH v. KIBER.
• Court: Texas Court of Appeals

260 S.W. 269

JOSEPH v. KIBER.

(No. 1057.)

Court of Civil Appeals of Texas. Beaumont.

March 27, 1924.

Rehearing Denied April 9, 1924.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Petition for injunction by Albert Kiber against Charles Joseph. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Gordon, Lawhon, Davidson & Pool, of Beaumont, for appellant.

Dycus & Shivers, of Port Arthur, for appellee.

HIGHTOWER, C. J.

This controversy and appeal are based upon the following facts:

On June 15, 1922, Charles Joseph, the appellant here, filed a suit in the justice court of precinct No. 1 of Jefferson county against Albert Kiber, the appellee, based on an open account for merchandise claimed by Joseph in that suit to have been sold by him to Kiber. On August 28, 1922, the justice court rendered and entered a judgment by default in favor of Joseph against Kiber, the latter not having appeared or answered, for $116.87, the full amount sued for by Joseph, with interest from the date of the judgment at the legal rate. The judgment of the justice court expressly recites that Kiber was duly served with citation in that suit, but that he did not appear or answer.

On September 13, 1922, Joseph caused a writ of execution to be issued against Kiber on the justice court judgment, but that writ was returned nulla bona. Thereafter, on April 28, 1923, an alias execution was issued on the justice court judgment, but Kiber prevented its levy by applying to Hon. George C. O'Brien, judge of the Fifty-Eighth judicial district, for a temporary injunction, which was granted.

In his petition for injunction, Kiber alleged that he was never served with citation in the justice court case, and that he had not waived such service, and that therefore the justice court judgment was absolutely null and void, and he prayed that upon final hearing the judgment of the justice court be held to be null and void, and that it be canceled, and that the temporary injunction be made permanent.

Thereafter, in due time, Joseph filed in the district court his answer and motion to dissolve the temporary injunction, alleging that Kiber was duly served with citation in the justice court case, as expressly recited in the judgment, and as shown by the return of the officer on the citation, and prayed that Kiber be denied the relief sought by him.

Trial in the district court was had without a jury, and resulted in a judgment for Kiber canceling the justice court judgment and making permanent the temporary injunction, and Joseph duly prosecuted this appeal from such judgment.

In addition to the express recitation of due service contained in the justice court judgment, the officer's return on the citation, which was made by a deputy constable, showed that Kiber was served in person on June 22, 1922. The deputy constable also testified in this case, and he was positive that he served the citation on Kiber, whom he knew well, and that he had a distinct recollection of having done so. He stated that it was his best recollection that he served Kiber some time in the afternoon at Kiber's Café in the city of Port Arthur.

Kiber, testifying as a witness in this case, was positive that he was not served with citation in the justice court, and that he never knew that the suit had been filed. He further stated that he did not own the Kiber Café at the time the merchandise was sold by Joseph in January and February, 1922, to recover the value of which the justice court suit was brought, but that the café known as the Kiber Café was at that time owned and operated by another, and that he (Kiber) never bought anything from Joseph and never owed him anything. Kiber further testified that he had at one time owned and operated the Kiber Café, but sold it to another about February 15, 1921, and repurchased the café about the 8th or 9th of May, 1922, and commenced to operate it about June 1, 1922, and that he was the owner of the café at the time the justice court suit was filed and at the time of the purported service upon and judgment against him in that suit, and that he is still such owner. He further testified that he had no knowledge of any claim against him by Joseph until about the 15th of June, 1922, at which time he received a letter from Mr. Joseph's attorney in the city of Beaumont, to the effect that the attorney had the claim for collection, and that he at once went to Beaumont and saw Mr. Joseph's attorney and explained to him that he did not owe Mr. Joseph anything; that during that conversation the attorney told him that he would again talk to Mr. Joseph about the matter before filing suit, and would let Kiber know Joseph's decision in the matter before a suit would be filed; that he heard no more from Joseph's attorney about the matter and never knew that the justice court suit had been filed until he was threatened with the execution which this suit was brought to enjoin.

Kiber further testified that at the date of the purported service in the justice court suit, he did not stay in the café all the afternoon, but that he would go out at 2 o'clock and not return again until 5:30, and that he could not have been served by the deputy constable in the café between those periods. He further stated that his café business was subject to execution, of which he was aware.

From the evidence as stated above, the trial court found that Kiber was never served with citation in the justice court, and the only question for our determination is whether the evidence was sufficient, when tested by the rule well established in this state, to warrant that finding by the trial court.

When it is attempted to set aside and cancel the judgment on the ground that the defendant in the judgment was not served with citation in the suit, and did not appear and answer, the rule in this state, as well as in many other jurisdictions. seems to be that if the judgment attacked expressly recites that due service was had and the officer's return on the citation in the suit shows that due service was had, the attack on the judgment for lack of service must fail where the evidence offered in support of the attack is that of only one witness, however credible he may be. This rule has its basis largely for reasons of public policy, as has been often declared by the appellate courts of this state. In some jurisdictions, it has been expressly held that a lack of service in such a suit must be established by at least two positive witnesses; but in this state, as we understand the rule at this time, it is that the recitation of due service contained in the judgment, as well as in the officer's return, may be disproved by only one witness, if his evidence be strongly corroborated. It is held, however, by all the courts that the corroborating facts and circumstances must come from a source other than that of the one witness who would attack the service of citation. Randall v. Collins, 58 Tex. 231; Pierce-Fordyce Oil Ass'n v. Staley (Tex. Civ. App.) 190 S. W. 814; Swearingen v. Swearingen (Tex. Civ. App.) 193 S. W. 442; Godshalk v Martin (Tex. Civ. App.) 200 S. W. 535; McBride v. Kaulbach (Tex. Civ. App.) 207 S. W. 576.

In Randall v. Collins, Judge Gould, speaking for the Supreme Court of this state in a case of this character, had this to say:

"There must be two witnesses, or one witness with strong corroborating circumstances. If equity will allow one who has been guilty of no fault or negligence to contradict the sheriff's return by parol evidence for the purpose of having an unjust judgment by default set aside, we are of opinion that it should require the evidence to be clear and satisfactory. It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony. In the case of Driver v. Cobb, supra, Chancellor Cooper says: `Nor will one witness alone suffice to successfully impeach the return, for that would only be oath against oath. In analogy to the denials or averments of a sworn answer upon the defendant's knowledge, there should be two witnesses, or one witness with strong corroborating circumstances. And without reference to this rule, upon general principles, it would seem essential to the peace and quiet of society that these solemn official acts should not be set aside with the same ease as an ordinary act in pais.'"

Chief Justice Gould also cites in support of the opinion authorities from other jurisdictions on the point, and then concludes his opinion as follows:

"Even prudent men and...