Midwest Piping & Supply Co. v. Page, 3451.
| Decision Date | 28 April 1939 |
| Docket Number | No. 3451.,3451. |
| Citation | 128 S.W.2d 459 |
| Parties | MIDWEST PIPING & SUPPLY CO., Inc., v. PAGE. |
| Court | Texas Court of Appeals |
C. A. Lord, of Beaumont, for plaintiff in error.
David E. O'Fiel and C. W. Wiedemann, both of Beaumont, for defendant in error.
This appeal by writ of error was prosecuted by Midwest Piping & Supply Company, Inc., plaintiff in error, from a judgment by default in the sum of $1,000, rendered in favor of J. R. Page, defendant in error, in the District Court of Jefferson County, on the 3rd day of May, 1938. The term of court at which the judgment by default was rendered convened on January 3, 1938, and ended the 5th day of July, 1938. Plaintiff in error made no appearance of any kind or character prior to the adjournment of the term of court at which the judgment was entered. The petition for writ of error was filed, together with the supersedeas bond, on the 11th day of July, 1938; the bond was approved on the day it was filed. Citation on the petition was issued on the 11th day of July, 1938, and served on defendant in error on the 12th day of July, 1938. Plaintiff in error's assignments of error were filed on the 11th day of July, 1938. The transcript was filed in this court on the 21st day of July, 1938, and plaintiff in error's original brief was filed in this court on the 28th of July.
The judgment by default was rendered on defendant in error's original petition filed in the lower court on the 21st day of March, 1938. For cause of action defendant in error alleged that plaintiff in error was a Missouri corporation, with a permit to do business in Texas and with offices in the City of Austin under the management of M. H. Goldsmith "upon whom service may be had"; that he was an employee of plaintiff in error; that it was the duty of plaintiff in error "to furnish him with a good and reasonably safe place to work"; that it breached this duty and as a proximate result he was injured and suffered damages in the sum of $2,000. Citation was issued on the petition on the 22nd day of March, 1938. The citation was in due form, and contained the following command, directed to the sheriff or any constable of Travis County: "A true copy of this writ you will deliver to the said Midwest Piping and Supply Company, Inc., by serving its agent M. H. Goldsmith, in person, together with certified copy of Plaintiff's original petition, on or before the 11th day of April, 1938." The sheriff made the following return on the citation, which was filed in the district court of Jefferson County, Texas, March 22, 1938:
On the 19th day of July, 1938, after the adjournment of the term of court at which the case was tried, and after plaintiff in error had perfected its appeal to this court by duly filing its petition for writ of error, supersedeas bond, etc., and after citation in error had been duly issued and served on defendant in error, and after the transcript had been filed in this court, and after plaintiff in error had duly filed its assignments of error, but before it had filed its brief in this court, defendant in error filed in the lower court his motion to amend the return made by the sheriff of Travis County upon the citation served by him on plaintiff in error. On the 29th day of July, 1938, the presiding judge of the lower court, on presentation to him of the motion to amend the sheriff's return, directed that "notice to show cause" issue and be served upon plaintiff in error and the sheriff of Travis County. The sheriff filed his answer to the motion, reciting that in fact he had served plaintiff in error with a certified copy of the original petition, as directed by the citation. The following service of the motion was had upon plaintiff in error: "Came to hand the 30th day of July 1938 at 4 o'clock P. M. and executed the 1st day of August A. D. 1938 by delivering to C. A. Lord, Attorney for defendant, the within named defendants' each in person, a true copy of this writ." Plaintiff in error made no appearance in answer to the service made upon Judge Lord, and made no contest of any kind to the motion to amend the citation. Plaintiff in error took no action of any kind or character in the lower court except to perfect its appeal to this court in the manner stated above. The motion to correct the sheriff's return on hearing in the lower court on the 13th day of August, 1938, was granted in all respects prayed for by defendant in error, and judgment was entered on the motion directing the sheriff of Travis County to correct his return on the original citation. Under that order the sheriff of Travis County corrected his return, which was filed in the lower court; the motion to correct the return and all proceedings thereon were filed in this court as a supplemental transcript on the 21st day of July, 1938, under our order.
Opinion.Plaintiff in error advances the following proposition against the amended return on the original citation, made by the sheriff of Travis County, and filed in the lower court, and in this court in the supplemental transcript: "Where, as in this case, the plaintiff in error has duly filed its petition for writ of error and its supersedeas bond on appeal by writ of error from a judgment by default rendered against it, and has duly procured and served the citation in error and filed its assignments of error, and in all respects has perfected its appeal by writ of error, the trial court has then no jurisdiction and is without power or authority to allow any correction on the sheriff's return of the citation on which such default judgment was rendered, and all proceedings and orders thereafter made in the trial court are invalid and the same cannot operate to correct the officer's return so as to establish and validate the...
To continue reading
Request your trial
-
Bolling v. Rodriguez
...McDaniel, 119 Tex. 148, 25 S.W.2d 295; Federal Surety Co. v. Cook, 119 Tex. 89, 24 S.W.2d 394; Midwest Piping & Supply Co., Inc. v. Page, Tex.Civ.App., Beaumont, April 28, 1939, 128 S.W.2d 459, writ of error refused; O'Daniel v. Libal, Tex. Civ.App., Waco, 1946, 196 S.W.2d 211, no In a sens......
-
Furst v. Smith
...to establish personal jurisdiction over a defendant, as contemplated by rule 106(b)(2). See Midwest Piping & Supply Co. v. Page, 128 S.W.2d 459, 462 (Tex.Civ.App.-Beaumont 1939, writ ref'd); see also Woodall v. Lansford, 254 S.W.2d 540, 540-543 (Tex.Civ.App.-Fort Worth 1953, no writ) (apply......
-
Gerdes v. Marion State Bank
...Goods Corp. v. McDonald & Shaw, 217 S.W.2d 137, 140-41 (Tex.Civ.App.--El Paso 1948, no writ); Midwest Piping & Supply Co. v. Page, 128 S.W.2d 459, 461-62 (Tex.Civ.App.--Beaumont 1939, writ ref'd). We realize that the ten-day rule seems very technical. Gerdes has not even hinted that any inj......
-
Delgado v. Delgado, 12466
...is overruled upon the following additional authorities: Rule 107, T.R.C.P.; Thomason v. Bishop, 24 Tex. 302; Midwest Piping & Supply Co. v. Page, Tex.Civ.App., 128 S.W.2d 459, writ of error refused; Watson v. Glenn, Tex.Civ.App., 82 S.W.2d 704; Home Benefit Ass'n v. Sims, Tex.Civ.App., 48 S......