Kirkegaard v. First City Nat. Bank of Binghamton, N. Y., 7407
| Decision Date | 02 November 1972 |
| Docket Number | No. 7407,7407 |
| Citation | 486 S.W.2d 893 |
| Parties | Edythe KIRKEGAARD, Appellant, v. FIRST CITY NATIONAL BANK OF BINGHAMTON, NEW YORK, Appellee. |
| Court | Texas Court of Appeals |
Pat Maloney, San Antonio, for appellant.
Gray, Gardner, Robison & Cobb, San Antonio, for appellee.
First City National Bank of Binghamton, New York, sued appellant on a promissory note in the District Court of Bexar County on August 12, 1971. On October 14, 1971, Bank's attorney mailed a motion for service under Rule 106 to the district judge enclosing an order. The unverified motion alleged:
'Now comes Plaintiff and would show that the Sheriff has been unable to serve the Defendant personally as she apparently is avoiding service of citation, that she is presently living at 7526 Alpine Valley, accepts telephone calls there and returns them, and is either the usual place of business of the Defendant or the usual place of abode, and that service of citation should be served by delivering a copy of the citation with petition attached at such address to anyone over 16 years of age or in any other manner which will be reasonably effective to give the Defendant notice of the suit.'
On the same day, the judge signed the following order:
'The foregoing Motion having been presented to me this day, it is accordingly ORDERED that the Sheriff shall serve citation by leaving a copy of the citation with petition attached at the usual place of business of the party to be served, or by delivering same to anyone over 16 years of age at the party's usual place of abode, at 7526 Alpine Valley, San Antonio, Bexar County, Texas.'
On December 8, 1971, a default judgment was rendered against appellant which recited that 'come not the Defendant, below named, though duly served with process having wholly failed to appear or answer herein.' The citation here has the following return:
'RETURN OF OFFICER
'Came to hand on the 13 day of Aug. A.D., 1971 at 12:37 o'clock P.M., and executed on the 27 day of October A.D., 1971 at 8:20 o'clock P.M., in Bexar County, Texas, by delivering to Edythe Kirkegaard by delivering to John Richard Kirkegaard it's son under Rule 106.'
We have no statement of facts and no brief from the Bank.
Appellant's brief is entirely predicated on the contention that the judgment is void because service was 'defective, improper and inadequate, in that the Trial Court did not consider any sworn testimony, written or oral, as to the impracticality of serving Appellant.'
Rule 106 is as follows:
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