Morgan v. Davis

• Decision Date: 05 March 1927
• Docket Number: (No. 9817.)
• Citation: 292 S.W. 610
• Parties: MORGAN v. DAVIS et al.
• Court: Texas Court of Appeals

292 S.W. 610

MORGAN v. DAVIS et al.

(No. 9817.)

Court of Civil Appeals of Texas. Dallas.

March 5, 1927.

Appeal from Henderson County Court; Grover H. Curlee, Judge.

Action by S. L. Morgan against T. B. Davis and others. From a judgment for defendants, plaintiff appeals. Reversed with directions.

E. A. Landman, of Athens, for appellant.

JONES, C. J.

Appellant, S. L. Morgan, brought this suit in the county court of Henderson county against T. B. Davis, A. F. Davidson, Howell E. Smith, residents of said county, and the sheriff, deputy sheriff, and constable of precinct No. 1 in said county, and the clerk of the county court of said county, appellees, for the purpose of canceling and setting aside a judgment rendered by default against him in said court in favor of said Howell E. Smith, for the sum of $302.75, and in favor of the said Davis and Davidson, his codefendants, in the sum of $198.28, and to enjoin all of said parties from issuing, or causing to be issued, a writ of execution, or from serving, or causing to be served, such writ that had theretofore been issued. A temporary writ of injunction was granted upon the presentation of the petition, but, on the hearing of a motion by appellees to dissolve, the temporary writ of injunction was dissolved and appellant has duly perfected his appeal to this court. On application of appellant, the temporary writ of injunction is held in force pending this appeal. The facts are as follows:

On the 8th of April, 1924, appellee, Howell E. Smith, on a petition theretofore filed, was awarded a judgment by default for the sum of $302.75, against appellees Davis and Davidson and appellant; and the said Davis and Davidson, as codefendants, were awarded a judgment by default for $198.28 against appellant on their action thus brought against him. Execution was not attempted to be served on appellant until about the 15th day of August thereafter, when this suit was immediately filed.

The grounds for the cancellation of this judgment and for the issuance of the injunction, as disclosed by appellant's petition, are that the portion of the judgment by default in favor of the said Smith against appellant is void, because, first, there was no service of citation and appellant had no knowledge that the suit was filed or that judgment was entered until the sheriff undertook to levy the writ of execution, and, second, the pleading of Smith does not allege a cause of action against appellant and is insufficient to support a judgment by default that portion of the judgment in favor of the said Davis and Davidson and against appellant is void because of want of service on appellant, and also because their said action shows on its face that it is an independent and disconnected suit from the one filed by Smith, and involved an amount not within the jurisdiction of the county court, and because the said action shows on its face to be for an unliquidated demand, does not give to the court the necessary facts upon which a judgment for any amount could be entered, and requires proof aliunde of the facts alleged in such action as a basis for judgment.

The question of service was submitted by the court to a jury on the hearing of the motion to dissolve, and the jury's finding on said issue was against appellant, and the trial court impliedly adopted this finding. As it is sustained by evidence, such finding is binding on this court, and this ground will not be further considered.

Are the allegations of fact in Smith's petition sufficient to sustain a judgment by default? The facts alleged are that on October 20, 1920, Davis and Davidson made, executed, and delivered to app...