Mega v. Anglo Iron & Metal Co. of Harlingen

• Decision Date: 05 June 1980
• Docket Number: No. 1598,1598
• Citation: 601 S.W.2d 501
• Court: Texas Court of Appeals
• Parties: Alejandro Morales MEGA, Petitioner, v. ANGLO IRON & METAL COMPANY OF HARLINGEN, Respondent.

Page 501

601 S.W.2d 501

Alejandro Morales MEGA, Petitioner, v. ANGLO IRON & METAL COMPANY OF HARLINGEN, Respondent.

No. 1598.

Court of Civil Appeals of Texas, Corpus Christi.

June 5, 1980.

Gary N. Patterson, Bonilla, Read, Bonilla & Berlanga, Inc., Corpus Christi, for petitioner.

Robert D. Thorpe, Shaw, Thorpe & Stone, Corpus Christi, for respondent.

OPINION

BISSETT, Justice.

This is a suit upon a sworn account. Alejandro Morales Mega, defendant in the trial court and petitioner in this Court, seeks by writ of error, to set aside a default judgment rendered against him by the District Court of Nueces County in favor of Anglo Iron and Metal Company of Harlingen, plaintiff in the trial court and respondent in this Court. Judgment was rendered for the balance alleged to be due on the account ($507,748.06), plus costs, prejudgment interest ($60,000.00) and attorney's fees ($15,000.00).

Anglo Iron and Metal Company of Harlingen, a Texas Corporation, hereinafter called "respondent," filed this suit against Alejandro Morales Mega, who resided in Mexico, hereinafter called "petitioner," on July 26, 1978. According to respondent's original petition, its live pleading, and the attached Bill of Sale (Exhibit "A") and Account (Exhibit "B"), both of which were incorporated into the petition by reference, 1) petitioner had an open account with Metals, Inc., for the purpose of dealing in metals; 2) Metals, Inc., executed a note, dated April 5, 1978, to First State Bank & Trust Company, Edinburg, Texas, and secured the same by a security agreement covering several accounts, including that of petitioner; 3) Metals, Inc., defaulted, and the Bank, at public sale, sold and assigned the accounts to respondent on May 19, 1978.

The account (Exhibit "B"), upon which this suit was instituted, reads, in words and figures, as follows:

and nothing more.

We have carefully considered petitioner's first and second points of error. They are overruled.

In his third point of error, petitioner contends that the judgment is void for want of in personam jurisdiction because the service and return of citation was fatally defective. We agree.

In order to uphold a default judgment which is directly attacked by a writ of error, it is essential that there be a strict compliance with the Rules of Civil Procedure relating to the issuance of citation, the manner and mode of service, and the return of process. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Roberts v. Stockslager, 4 Tex. 307 (1849); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (Tex.Com.App.1935, opinion adopted); Travis Builders, Inc. v. Graves, 583 S.W.2d 865 (Tex.Civ.App. Tyler 1979, no writ). In a direct attack upon a default judgment, there are no presumptions of valid issuance, service and return of citation, McKanna v. Edgar, supra; Grapevine Trucking, Inc. v. Shepherd, 366 S.W.2d 950 (Tex.Civ.App. Fort Worth 1963, writ ref'd n. r. e.); Johnston v. Johnston, 575 S.W.2d 610 (Tex.Civ.App. San Antonio 1978, no writ); Hanover Modular Homes of Taft v. Corpus Christi Bank & Trust, 476 S.W.2d 97 (Tex.Civ.App. Corpus Christi 1972, no writ). The Texas Rules of Civil Procedure relating to the issuance, service and return of citation are generally regarded as mandatory, and failure to show affirmatively a strict compliance with the Rules will render the attempted service of process invalid and of no effect. McKanna v. Edgar, supra; Lemothe v. Cimbalisti, 236 S.W.2d 681 (Tex.Civ.App. San Antonio 1951, writ ref'd); Nichols v. Wheeler, 304 S.W.2d 229 (Tex.Civ.App. Austin 1957, writ ref'd n. r. e.).

The trial court in the case at bar, upon proper motion, ordered that petitioner be served in either of the following ways: 1) personal service by a disinterested adult in accordance with Rules 106-108, T.R.C.P.; or 2) the mailing of a citation by registered or certified mail, with delivery restricted to addressee only, to his home address by a disinterested adult in accordance with those Rules. In its order, the trial court appointed "A. R. 'Tony' Martinez" as the disinterested adult to serve the petitioner with citation.

The citation was issued to "Alejandro Morales Mega, Defendant." It was addressed and mailed via registered mail, to "Alejandro Morales Meza," with "delivery restricted to the defendant within named, to-wit, 'Alejandro Morales Mega.' " Petitioner contends that the substitution of the letter "z" for the letter "g" in the last name of the defendant renders the citation fatally defective since the citation shows on its face that it was not mailed to him but to an entirely different person.

A mistake in stating the defendant's name in the citation has been consistently held to be fatally defective. Southern Pacific Co. v. Block, 84 Tex. 21, 19 S.W. 300 (Tex.1892); Fleming v. Hernden, 564 S.W.2d 157 (Tex.Civ.App. El Paso 1978, writ ref'd n. r. e.); Zimmerman v. First Nat. Bank of Bowie, 235 S.W.2d 720 (Tex.Civ.App. Fort Worth 1950, writ ref'd n. r. e.); Nail v. Gene Biddle Feed Company, Inc., 347 S.W.2d 830 (Tex.Civ.App. Beaumont 1961, no writ). The same rule applies in this case where the citation states one name, but the same was mailed to and presumably served on a person with a different name.

The return of citation is signed by "A. R. Martinez, Jr.," not by "A. R. 'Tony' Martinez," the name of the appointee designated to serve petitioner with the citation. This discrepancy renders invalid the service of process on petitioner since the record shows on its face that the return was not signed by the person who was appointed to make the same.

As petitioner neither filed a waiver of service of process nor made an appearance in the trial court prior to the rendition of judgment, it was incumbent upon respondent to show that the trial court acquired jurisdiction of the person of petitioner by means of a valid issuance of citation, service and return thereof. This, it did not do. The service and return of process in this case are fatally defective. Jurisdiction of the trial court over the person of petitioner does not affirmatively appear on the face of the record. The judgment is void. Petitioner's third point is sustained.

In his fourth point of error, petitioner attacks the judgment on the grounds that the pleadings and evidence are insufficient as a matter of law to support the judgment. In his brief, he argues that the contents of the account attached to the petition, and the evidence presented to the trial judge, are each legally insufficient to support a default judgment.

The Supreme Court of Texas in Love v. Doak & Tims, 5 Tex. 343 (1849), where the main issue was whether the statute of limitations had run so as to bar the action to recover on the account said:

"(I)n an action on an account for goods and wares sold and delivered, the sale and delivery are the material facts on which depends the liability of the defendant, and they should be distinctly averred . . ."

It is a well established rule in Texas that in order to support a default judgment against a direct attack by writ of error, the account must show on its face, and with reasonable certainty, the nature of each item therein, the date it was purchased, and the charge therefor. Carruth v. Wix Corporation, 409 S.W.2d 938 (Tex.Civ.App. Beaumont 1966, writ ref'd n. r. e.); Hassler v. Texas Gypsum Company, Inc., 525 S.W.2d 53 (Tex.Civ.App. Dallas 1975, no writ); Bookstall, Inc. v. John Roberts, Inc., 517 S.W.2d 451 (Tex.Civ.App. Austin 1974, no writ); Texan Man's Shop, Inc. v. Nunn-Bush Shoe Company, 401 S.W.2d 716 (Tex.Civ.App. Corpus Christi 1966, no writ); Becker, Smith & Page v. Wm. Cameron & Co., 22 S.W.2d 951 (Tex.Civ.App. Waco 1929, writ dism'd); ...