Moran Oil & Gas Co. v. Anderson

• Decision Date: 22 May 1920
• Docket Number: (No. 9349.)
• Citation: 223 S.W. 1031
• Parties: MORAN OIL & GAS CO. et al. v. ANDERSON et al.
• Court: Texas Court of Appeals

Page 1031

223 S.W. 1031

MORAN OIL & GAS CO. et al. v. ANDERSON et al.

(No. 9349.)

Court of Civil Appeals of Texas. Ft. Worth.

May 22, 1920.

Error from District Court, Scurry County; W. W. Beall, Judge.

Suit by E. J. Anderson and others against the Moran Oil & Gas Company and others. To review judgment for plaintiffs by default, defendants bring error. Reversed, and cause remanded.

A. H. Kirby, of Abilene, for plaintiffs in error.

Robt. L. Johnson, of Snyder, and James Spiller, of Sweetwater, for defendants in error.

CONNER, C. J.

This is an appeal from a judgment by default in favor of appellees for $30,000 in a suit instituted in a district court of Scurry county by appellee E. J. Anderson and thirty-one others. It was alleged that these plaintiffs were stockholders in the Moran Oil & Gas Company, incorporated under the laws of this state, with a total capitalization of $65,000, of which the plaintiffs owned in the aggregate $9,000. It was further alleged that F. L. Driskill and seven other defendants named had promoted, incorporated, and organized the Moran Oil & Gas Company, and that they were the directors and acting officers of the company; that the defendants had sold to various subscribers, including the plaintiffs, $30,000 or more of the stock in the oil company, with the express understanding and agreement that the money so paid should be used in the development of a specified tract of land by drilling it for oil and gas. It was further alleged that the defendant, directors and officers named, had violated such agreement, and had appropriated the funds so received for stock to their own use and benefit, and the prayer was for the appointment of a receiver and a recovery of the money so paid for the use and benefit of the Moran Oil & Gas Company and such other subscribers of stock as had not been made parties to the suit. Several other persons were named as defendants; but, inasmuch as they were eliminated by the judgment, they will not be hereinafter referred to.

Upon the filing of the petition, citations were severally issued to the several defendants, all of whom were alleged to reside in Callahan county, with a duly certified copy of the petition accompanying each citation. As appears from the sheriff's returns, the several citations were duly served, together with its accompanying certified copy of the petition. In so far as it is necessary to quote, the citation reads as follows:

"You are hereby commanded to summon C. B. Snyder to be and appear before the honorable district court of Scurry county, Tex., at the next regular term thereof to be holden at the courthouse in Snyder on the fourth Monday in December, 1918, same being the 23d day of December, 1918, then and there to answer the plaintiffs' petition filed in a suit in said court on the 9th day of December, 1918, wherein E. J. Anderson et al. are plaintiffs and Moran Oil & Gas Company et al. are defendants."

The names of the several defendants are later given in the citation, but the names of the plaintiffs are not otherwise stated than as in the quotation above set forth.

At the return term of court, the defendants failed to answer, and the court, having heard the evidence as the judgment recites, entered up a judgment by default in favor of the plaintiffs and against the defendants for the sum of $30,000, as hereinbefore stated. From this judgment, the defendants only have prosecuted the writ of error now before us.

Plaintiffs in error present as their first and principal assignment the following:

"The court erred in rendering judgment in this cause against these defendants, and each of them, for the reason that the citations which were served on each of the defendants, Moran Oil & Gas Company, F. L. Driskill, C. B. Snyder, Ben Seigal, T. E. Powell, and A. R. Day, are defective, in that none of the said citations contain the names of all the parties to the suit, as required by the statutes of the State of Texas."

Article 1850 of our Revised Statutes reads as follows:

"When a petition shall be filed with the clerk, and the other regulations hereinafter prescribed shall be complied with, it shall be his duty to issue forthwith a writ of citation for the defendant."

Article 1851 reads:

"If there be several defendants, residing in different counties, one citation shall issue to each of such counties."

Article 1852 reads:

"Such citation shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be, and shall command him to summon the defendant to appear and answer the plaintiff's petition at the next regular term of the court stating the time and place of holding the same. It shall state the date of the filing of the plaintiff's petition, the file number of the suit, the names of all the parties and the nature of the plaintiff's demand, and shall contain the requisites prescribed in article 2180."

Article 1853 reads:

"Where the defendant is to be served without the county in which the suit is pending, a certified copy of the plaintiff's petition shall accompany the citation; and, should there be more than one defendant to be served without the county, a certified copy of the petition shall be made out for each of them."

In treating of the necessity and purpose of a citation in general, the author of Ruling Case Law, vol. 21, p. 1262, § 3, says:

"It is a principle that lies at the foundation of all jurisprudence in civilized countries that a person must have an opportunity of being heard before a court can deprive him of his rights. Any other doctrine would be antagonistic to our form of government, and to the provisions of our Constitution. No court, in the ordinary administration of justice, in common-law proceedings, can exercise jurisdiction over a person unless he shall voluntarily appear, or is found within the jurisdiction of the court, so as to be served with process. Therefore, in order to authorize a court to determine the adverse claims of parties touching their rights in things, judicial process is indispensable. Until notice is given, the court has no jurisdiction in any case to proceed to judgment whatever its authority may be, by the law of its organization, over the subject-matter. Judgment without notice wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered. The mere fact that a defendant has knowledge of a suit pending against him is not sufficient to give the court jurisdiction."

While the author in the quotation presents the uniform view of the courts as expressed in the decisions, of the nature and importance of a citation, he has not given its necessary contents, but by reference to article 1852, above quoted, it will be seen that our Legislature has. And, as expressed in 32 Cyc. p. 428, par. D, "the requisites of process are largely matters of statutory regulation." The author adds:

"It is necessary that the writ contain whatever the statute prescribes, whether deemed important or not."

Appellees urge, however, that—

"Where citation is served on a nonresident, and the citation, which refers to a certified copy of the petition which accompanies citation, and in the certified copy of the petition the names of all the parties are fully set out, objection to the citation that it is fatally defective for failure to contain the names of all the parties, and hence insufficient to support a judgment by default, cannot be raised for the first time on appeal"

—and cite the following cases in support of the contention so made: Dikes v. Monroe, 15 Tex. 236; Crain v. Griffis, 14 Tex. 358; Guimond v. Nast, 44 Tex. 114; Graves v. Drane et al., 66 Tex. 658, 1 S. W. 905; Marshall v. Marshall, 30 S. W. 578; Lash v. Bank, 54 S. W. 806; National Society v. Tennison, 174 S. W. 978; O'Donnell v. Chambers, 163 S. W. 138; Andrews v. Ennis, 16 Tex. 46.

The cases of Guimond v. Nast and Crain v. Griffis, supra, will perhaps best illustrate the general purport of the cases cited in behalf of appellees. In the case of Guimond v. Nast, the petition of Nast and Greenzweig declared on a note executed by Guimond and Powers, "Defendants...