Lawyers Lloyds of Texas v. Webb

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Lawyers Lloyds of Texas v. Webb, 150 S.W.2d 181 (Tex. App. 1941)
• Decision Date: 27 March 1941
• Docket Number: No. 2310.,2310.
• Parties: LAWYERS LLOYDS OF TEXAS v. WEBB et al.

150 S.W.2d 181

LAWYERS LLOYDS OF TEXAS v. WEBB et al.

No. 2310.

Court of Civil Appeals of Texas. Waco.

March 27, 1941.

Rehearing Denied April 24, 1941.

Error to District Court, Limestone County; H. F. Kirby, Judge.

Suit by J. F. Russell and wife against Juanita Webb and another in trespass to try title, wherein Juanita Webb filed a cross-action in trespass to try title and procured a writ of sequestration, whereupon plaintiffs with Lawyers Lloyds of Texas and others, as sureties, executed a replevy bond, and possession of the land was delivered to plaintiffs. A judgment for Juanita Webb for $1,972.13 was entered against the sureties on the replevy bond, and separate writs of error were sued out by the plaintiffs and Lawyers Lloyds of Texas and the causes were consolidated. On motions to dismiss writs of error.

Writs of error dismissed.

Currie McCutcheon and Bruce Graham, both of Dallas, Gene Maddin, of Waco, Norton Fox, of Groesbeck, and Doss Hardin, of Dallas, for plaintiff in error.

B. L. Bradley and L. W. Shepperd, both of Groesbeck, for defendants in error.

RICE, Chief Justice.

J. F. Russell and wife, Leora Dyer Russell, filed this suit in the district court of Limestone county against Juanita Webb and the Lincoln National Life Insurance Company in trespass to try title. Juanita Webb filed a cross action in trespass to try title against the plaintiffs, and procured a writ of sequestration to be issued out of said court and levied on the land involved. Thereupon plaintiffs, as principals, and T. A. Chapman, O. L. Wallard, A. E. McNairy, H. H. Thomason, A. J. Hargrove, J. P. Anderton, H. A. Dyer and Lawyers Lloyds of Texas, as sureties, executed a replevy bond, and the possession of said land was delivered to the plaintiffs on March 15, 1939, and by them retained until October 26th of said year.

The case was tried to a jury, but upon the completion of the evidence the trial court sustained Juanita Webb's general demurrer to plaintiffs' cause of action, and the jury, pursuant to the instruction of the court, returned its verdict in favor of Juanita Webb on her cross action, and on October 12, 1939, the court rendered judgment in favor of Juanita Webb and against plaintiffs for the title and possession of the land involved; that plaintiffs recover nothing against the Lincoln National Life Insurance Company; and that Juanita Webb recover of plaintiffs and the above mentioned sureties on the replevy bond the sum of $1,972.13 and costs of court.

J. F. Russell and wife, Leora Dyer Russell, and each of the above mentioned surety defendants, timely filed their motion for new trial, which was by the court overruled October 26, 1939, to which J. F. Russell and wife and each of said surety defendants excepted and gave notice of appeal to this court.

On November 21, 1939, Lawyers Lloyds of Texas filed its supersedeas bond in the trial court; and on December 8, 1939, Leora Dyer Russell and husband filed their application for writ of error in said court, together with their affidavit of inability to pay the costs of court or give security therefor. Citation in error was issued out of said court under said application on the 13th day of December, 1939, to Juanita Webb, one of the defendants in error, and served on her on December 16, 1939. No citation in error had been issued or served, at that time, on defendant in error Lincoln National Life Insurance Company, as disclosed by the transcript of the proceedings had in the trial court in said cause filed in this court on December 22, 1939. Thereafter, on motion of defendant in error Juanita Webb, this attempt to appeal by the parties above mentioned was dismissed by this court on January 25, 1940, for the reason that said supersedeas bond was filed more than twenty days after the expiration of the term of court at which said cause was tried and therefore this court had no jurisdiction of said cause.

Thereafter, and on December 29, 1939, plaintiffs in error Leora Dyer Russell and husband again filed in the trial court an affidavit of inability to pay costs of writ of error or give security therefor; and on said date each of the surety defendants, except Lawyers Lloyds of Texas, filed in the trial court their respective applications for writ of error and their respective affidavits of inability to pay costs or give security therefor. Citations in error were issued out of the trial court on each of said applications on January 16, 1940, and said citations were served on defendant in error Juanita Webb on January 19th and on the defendant in error Lincoln National Life Insurance Company on January 18th. The defendant in error Lincoln National Life Insurance Company was never served with citation in error issued on the application of any of the parties to this cause until January 18, 1940. On February 22, 1940, a transcript showing the proceedings had in the trial court in said cause, including those just above mentioned, was filed in this court, taking the number 2296.

Thereafter, on January 30, 1940, Lawyers Lloyds of Texas filed its application for writ of error in the trial court, together with a supersedeas bond; citation was issued thereunder and served on each of the defendants in error on the 7th day of February, 1940. Thereupon a transcript of the proceedings of the trial court, including those last above mentioned, was filed in this court, taking the number 2310. Thereafter it was agreed between the parties that said causes Nos. 2296 and 2310 should be consolidated and same were consolidated, by an order of this court, under the number 2310. There is no dispute of the fact that Leora Dyer Russell and husband, J. F. Russell, participated in person and by attorney in the actual trial of the case in the trial court.

It is the settled law of this state that appeal by writ of error is not perfected until citation in error has been issued and served upon the defendants in error. United Employers Casualty Co. v. McGee, Tex.Civ.App., 143 S.W.2d 653; United Employers Casualty Co. v. Skinner, Tex. Civ.App., 141 S.W.2d 955; Art. 2267, Vernon's Ann.Civ.Stats. Each defendant in error must have been duly served with citation in error before jurisdiction of the Court of Civil Appeals attaches in a cause brought up by writ of error. Ayers v. Alamo Lumber Co., Tex.Civ.App., 122 S. W.2d 208, and authorities there cited. It follows that the appeal of Leora Dyer Russell and husband to this court by writ of error could not be perfected until service of citation in error on their application for writ of error was had upon each of the defendants in error, this being on the 19th day of January, 1940, the date of the service of citation on Lincoln National Life Insurance Company. It is therefore apparent that the principal defendants Leora Dyer Russell and husband, not having taken all of the steps necessary to perfect their appeal by writ of error prior to January 2, 1940, and having participated in the actual trial of the cause in the trial court, come squarely within the terms of Article 2249a, as interpreted by this court in the case of United Employers Casualty Co. v. Skinner, 141 S.W.2d 955, in which writ of error was refused, and that therefore appeal by writ of error was not available to said principal defendants.

Unless precluded by the terms of Article 2249a, the surety defendants, other than Lawyers Lloyds of Texas, respectively perfected their appeals by writ of error on the 19th day of January, 1940, the date of completion of service of citation in error on each of defendants in error; and, unless likewise precluded, Lawyers Lloyds of Texas perfected its appeal by writ of error on February 7, 1940, by securing service on that date on each of defendants in error.

Defendants in error Juanita Webb and Lincoln National Life Insurance Company have filed their motions to dismiss this, appeal.

It is the contention of those of plaintiffs in error who were sureties upon the replevy bond that they are entitled to review by this court through means of writ of error, because, they say, they did not participate, either in person or by attorney, in the actual trial of this case in the trial court; and therefore the provisions of Article 2249a do not apply to them.

On the other hand, defendants in error contend that the sureties upon said replevy bond could not participate in the actual trial of the case in the trial court prior to rendition of judgment, except as they participated through the principals on said bond and through the attorneys of the principals; and this being true, that these plaintiffs in error did participate in the actual trial through the principals on said bond and their attorneys. Defendants in error further urge that the plaintiffs in error, who were sureties on said bond, did participate in the actual trial of the case in the trial court because each of said surety defendants, upon the rendition of judgment, timely filed their motion for new trial in the trial court and were each represented in the trial court by their attorneys when said motion was presented to the court and when the same was overruled; and because each of them excepted...