Maier v. Davis

• Decision Date: 10 May 1934
• Docket Number: No. 2584.,2584.
• Citation: 72 S.W.2d 308
• Parties: MAIER v. DAVIS et al.
• Court: Texas Court of Appeals

72 S.W.2d 308

MAIER v. DAVIS et al.

No. 2584.

Court of Civil Appeals of Texas. Beaumont.

May 10, 1934.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Suit by J. L. Davis and another against M. E. Maier and another. Judgment for plaintiffs, and defendant named appeals.

Affirmed.

W. E. Lea, of Orange, for appellant.

Sanders & McLeroy, of Center, for appellees.

O'QUINN, Justice.

Appellees, J. L. Davis and Mrs. W. C. Taylor, brought this suit in the district court of Shelby county, Tex., April 7, 1933, against appellant, Maier, and J. B. Sample, sheriff of Shelby county, to enjoin the levy of an execution issued out of the county court of Orange county, Tex. The judgment on which the execution was based was in favor of appellant, Maier, and against Lem Bouland, W. A. Davis, and Add Hooker, named as composing the partnership of Bouland & Davis. It was rendered January 21, 1933.

The grounds alleged for the injunction were that the firm of Bouland & Davis was composed of J. L. Davis and Mrs. W. C. Taylor, doing a general merchandise business at Tenaha, Shelby county, Tex.; that W. A. Davis nor Add Hooker were ever members of said firm, or had any interest whatever in same; that the judgment upon which the execution was issued and which was sought to be enjoined was void as to them, said J. L. Davis and Mrs. W. C. Taylor, because (a) neither said Davis nor Mrs. Taylor, composing the partnership of Bouland & Davis, was a party defendant in the suit wherein said judgment was rendered; (b) that neither said J. L. Davis nor Mrs. W. C. Taylor was served with any legal process commanding them to appear and answer in said suit; (c) that said judgment nowhere mentioned them or decreed anything against them, or either of them, but to the contrary decreed judgment in favor of appellant against Lem Bouland, W. A. Davis, and Add Hooker, a partnership operating under the firm name of Bouland & Davis; (d) that the citation in said suit nowhere named either of appellees, nor did it command the officer serving same to summon either of them to appear in said court to answer to said suit; (e) that no citation was issued out of the county court of Orange county commanding service upon either J. L. Davis or Mrs. W. C. Taylor, composing the partnership of Bouland & Davis, and the attempt of said officer to serve same upon J. L. Davis was unauthorized and void, and said process so attempted to be served upon said J. L. Davis contained none of the prerequisites required by law, but was wholly void; and (f) that said county court of Orange county did not acquire or have jurisdiction over the person of either the said J. L. Davis, or Mrs. W. C. Taylor, or of the said partnership of Bouland & Davis, wherefore the said judgment rendered therein was and is wholly void as to them, and as to said partnership.

Temporary injunction was granted, and the cause set for hearing. The defendants appeared and answered by general demurrer, and special exceptions, (a) that plaintiffs had an adequate remedy at law, wherefore the injunction should be dissolved; (b) that the allegations asserting that the judgment was void were but mere conclusions of the pleader, and insufficient to warrant the issuance of the injunction; (c) that the district court of Shelby county was without jurisdiction to hear and determine the question of injunction; and (d) that the district court of Shelby county, upon granting the injunction, should have made the same returnable to the county court of Orange county, the court in which the judgment was rendered, for hearing. Further answer on the facts was made, and plea for 10 per cent. damages for delay was prayed for.

In addition to his answer and exceptions above noted, appellant filed his motion to dissolve the temporary injunction urging the same grounds as contained in his special exceptions. This motion was overruled. The cause was then heard and judgment entered making the injunction permanent.

At request of appellant, the court filed his findings of fact and conclusions of law. There is also in the record a full statement of facts agreed to by the parties and approved by the court.

Briefly stated, the court found:

(1) The partnership of Bouland & Davis of Tenaha, Shelby county, Tex., was composed of J. L. Davis and Mrs. W. C. Taylor, alone; that neither Lem Bouland, nor W. A. Davis, nor Add Hooker, were ever members of said partnership; and that Lem Davis and J. L. Davis are one and the same person.

(2) That M. E. Maier filed suit in the county court of Orange county, Tex., "complaining of Lem Bouland, W. A. Davis and Add Hooker, a partnership, operating under the firm name of Bouland & Davis, and who reside in Shelby County, Texas, hereinafter called defendants."

(3) That the clerk of said court issued a citation addressed to the sheriff or any constable of Shelby county, Tex., commanding such officer "to summon Add Hooker to be and appear * * * then and there to answer plaintiff's petition filed in a suit * * * wherein M. E. Maier is plaintiff and Add Hooker and Len Bouland and W. A. Davis, a partnership operating under the firm name of Bouland & Davis are defendants," and that said citation had attached thereto a certified copy of the plaintiff's original petition; that said citation was delivered by J. T. Dickson, constable, to J. L. Davis, and that no other citation was served on J. L. Davis, and that no citation whatever was served on Mrs. W. C. Taylor.

(4) That the clerk of said court issued a similar citation to that in the finding above, except that it required the officer to summon "Len Bouland and W. A. Davis, a partnership,...