Kelley v. First Nat. Bank of Fort Worth
| Decision Date | 17 September 1954 |
| Docket Number | No. 3102,3102 |
| Parties | E. L. KELLEY, Appellant, v. The FIRST NATIONAL BANK OF FORT WORTH, Appellee. |
| Court | Texas Court of Appeals |
L. D. Hawkins, Breckenridge, for appellant.
Harrell & Harrell, Breckenridge, for appellee.
C. A. White sued J. S. McGarry, Sam Amsler and wife, and E. L. Kelley. White alleged they were 'joint owners and joint operators' of an oil and gas lease; that McGarry, acting for and on behalf of the other joint owners and operators, entered into written contracts with White for the rental of oil field equipment; that defendants had failed to return some casing and had converted it and owed rent on other material and owed part of the agreed purchase price of casing purchased by 'defendants.'
Kelley was served with citation but neither appeared nor answered. A hearing was had on the Amsler's plea of privilege and, at the conclusion thereof, a non-suit was taken as to all defendants except Kelley. A default judgment for $10,174.82 was rendered against Kelley. Kelley received no notice other than service of the citation. He did not participate in the trial and seeks a review of said judgment by writ of error. Prior to entry of the judgment, but on the same day, the First National Bank of Fort Worth filed a motion in which it alleged it was the executor and trustee under the will of White, deceased, and suggested that, since the filing of the suit and before a verdict, White had died; that the cause of action was one that survived, wherefore, the Bank, as executor and trustee, moved that the suit be continued with the Bank as plaitniff. On the same day, the court entered an order which recited that said Bank, trustee and executor of the will of White, deceased, appeared in open court by its attorney and made suggestion of the death of White; that said suggestion was true; that said Bank had qualified as executor and trustee. The court ordered said suggestion entered of record in open court and that said Bank, as executor and trustee of the will of White, 'be and it is hereby made plaintiff in such suit and that such suit shall proceed in its name.'
The judgment against Kelley recited that the court heard evidence and was of the opinion that plaintiff had been damaged $10,174.82, by Kelley, wherefore, judgment was rendered against him for that amount. The judgment recited that plaintiff had abandoned its suit on certain promissory notes. It, therefore, is shown that the judgment against Kelley was necessarily based on a suit for rent and conversion of oil field equipment furnished by White to McGarry under written contracts signed by McGarry acting for and on behalf of the defendants or for that together with the purchase price of material purchased by 'defendants.'
Kelley contends the court erred in rendering a default judgment against him in favor of said Bank because the suit was originally filed by White, and, although Kelley had been cited on White's petition, he had no notice that the Bank, instead of White, was seeking judgment against him or that it had any right to recover on the cause of action alleged by White. In other words, Kelley contends that, although he was duly served with citation issued on White's petition, since he did not appear or answer a default judgment in favor of the Bank, should not have been rendered without further notice to Kelley. These points are overruled. Old Article 2291 provided that 'notice of a motion in a suit pending is given by filing the motion and its entry in the motion docket during the term, and such motion which does not go into the merits of the case may be disposed of at any time before the trial of the case.' Texas Rule of Civil Procedure 150 provides where the cause of action is one that survives, no suit shall abate because of the death of any party thereto before the verdict or decision of the court is rendered, 'but such suit may proceed to judgment as hereinafter provided.' R.C.P. 151 provides 'if the plaintiff dies, the * * * executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his * * * name.' R.C.P. 63 provides that parties may amend their pleadings and file suggestion of death by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that an amendment offered for filing within seven days of the trial shall be filed only after leave of the judge is obtained.
R.C.P. 241 provides:
'Where a judgment by default is rendered against the defendant, or all of several defendants, if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and judgment final shall be rendered therefor, unless the defendant shall demand and be entitled to a trial by jury.'
R.C.P. 243 provides:
'If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of inquiry awarded, and the cause entered on the jury docket.'
The record shows Kelley did not demand a jury and the court took the action provided by said rules. Rule 21a, which became effective December 31, 1947, has a provision to the same effect as that part of old Article 2291, quoted above, to wit: 'notice of a motion in a suit pending is given by filing the motion and its entry in the motion docket'. There was certainly 'a suit pending' when the Bank filed its motion to be substituted as plaintiff and it was entered on the docket.
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