King v. Air Express International Agency, Inc., 14998

• Decision Date: 16 March 1967
• Docket Number: No. 14998,14998
• Citation: 413 S.W.2d 838
• Parties: Manuel KING, d/b/a King's Snake Farm, Appellant, v. AIR EXPRESS INTERNATIONAL AGENCY, INC., Appellee. . Houston
• Court: Texas Court of Appeals

Page 838

413 S.W.2d 838

Manuel KING, d/b/a King's Snake Farm, Appellant, v.AIR EXPRESS INTERNATIONAL AGENCY, INC., Appellee.

No. 14998.

Court of Civil Appeals of Texas Houston.

March 16, 1967.

Rehearing Denied April 13, 1967.

Heath & Robinson, Bob Heath, Houston, for appellant.

Don W. Graul, Houston, for appellee.

WERLEIN, Justice.

Appellee, Air Express International Agency, Inc., filed this suit on March 20, 1964, against All Pet Center, Inc., a corporation doing business as King's Snake & Wild Animal Farm, on a verified account for services rendered and for interest and attorney's fees.All Pet's Center, Inc., filed an answer on April 27, 1964, denying that appellee ever sold or delivered any goods or services to it, and further denying that it was doing or ever did business as King's Snake & Wild Animal Farm.On May 18, 1965, appellee filed its first amended original petition in which for the first time it complained of Manuel King, Individually and Doing Business as King's Snake Farm, and sued on the same verified account which in the affidavit to the pleading was stated to be against King's Snake & Wild Animal Farm.Citation was duly served on Manuel King on May 27, 1965.He did not file an answer until May 24, 1966, nearly a year after being served with citation.

In appellee's first amended original petition, which superseded its original petition, no mention whatever is made of All Pet Center, Inc., a corporation, and it was completely left out and omitted in the amended pleading.Under Rule 65,Texas Rules of Civil Procedure, appellee's original petition could no longer be regarded as any part of the pleading in the record of this cause.The law is well settled that an amended pleading completely supersedes and supplants the pleading which is amended.Henderson v . Jimmerson, 234 S.W.2d 710, Tex.Civ.App.1951, ref., n.r.e.;Hunt v. Employers Reinsurance Corp., 219 S.W.2d 483, Tex.Civ.App.1949, ref., n.r.e.;Dyche v. Simmons, 264 S.W.2d 208, Tex.Civ.App.1954, ref. n.r .e.;Kelso v. Wheeler, 310 S.W.2d 148, Tex.Civ.App.1958, n.w.h.In Brennan v. Greene, 154 S.W.2d 523, Tex.Civ.App.1941, writ. ref., the court held that parties to a suit are just as effectively dismissed from the suit by omitting their names from amended pleadings subsequently filed, as if a formal order of dismissal as to them had been entered.Hence appellee's amended petition which made Manuel Kinga party to the suit effectively dismissed All Pet's Center, Inc . from the suit.

On September 23, 1964, appellant not having filed an answer, although duly served with process, the court entered a default judgment against said appellant, Manuel King, doing business as King's Snake Farm, in the sum of $976.58 together with interest from date of the judgment.The amount of the judgment includes interest to date thereof in the sum of $175.50 and reasonable attorney's fees in the sum of $150.00 as found...