Newman v. Mackey

• Decision Date: 02 November 1904
• Citation: 83 S.W. 31
• Parties: NEWMAN v. MACKEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 31

NEWMAN v. MACKEY.^*

Court of Civil Appeals of Texas.

November 2, 1904.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by S. H. Newman against Hugh J. Mackey. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

M. W. Stanton, for appellant. Dean, Bowden & Bryan, for appellee.

NEILL, J.

This is an action of debt brought by appellant against the appellee on the judgment described in our conclusions of fact. As a defense, appellee (defendant below) pleaded that the citation served upon him in the case wherein the judgment sued upon was obtained did not have affixed thereto the seal of the district court of El Paso county, and was therefore void, and the district court had no jurisdiction to render such judgment, and that the same is for that reason likewise void. As the question raised by this part of the answer is, in our opinion, the only one necessary to a decision of this case, we deem it unnecessary to state any other matters pleaded by either party. The case was tried by the court without a jury, and the trial resulted in a judgment in favor of the defendant.

The facts found by the trial judge, necessary to a decision of this question, are as follows:

"(1) That on the 11th day of January, A. D. 1893, at the January term of the district court of El Paso county, Texas, in the case of S. H. Newman, Plaintiff, v. Hugh J. Mackey, Defendant (No. 1,726), the plaintiff, S. H. Newman, recovered a judgment by default against the said defendant, wherein it appears that the plaintiff appeared by his attorney, J. W. Wright, and, as recited in said judgment, `the defendant comes neither in person nor by attorney, though heretofore duly and legally served with the citation herein, but wholly makes default,' and plaintiff thereupon asked default against defendant for want of appearance and answer therein, and the same was entered against the defendant, Hugh J. Mackey; and on the same day the court proceeded to hear the evidence adduced by the plaintiff in said cause, and, being fully advised in the premises, found that the defendant, Hugh J. Mackey, was indebted to the plaintiff, S. H. Newman, in the sum of $819.97, and it was by the court decreed, in the usual form, that the said plaintiff have and recover of and from the defendant the sum of $819.97, together with interest thereon from the date of said judgment at the rate of 12% per annum, for which execution was awarded, and it was further ordered that the plaintiff take nothing on his claim for attorney's fees, and that execution issue against the parties, respectively, for the costs incurred by them. A true copy of said judgment is annexed to plaintiff's first amended original petition, marked `Exhibit A,' and made a part thereof, and reference is made thereto for same.

"(2) That on the 26th day of October, A. D. 1892, the petition in said cause No. 1,726 in the district court of El Paso county, Texas, was filed in said cause, and on November 1, 1892, a citation was issued in said cause, in the usual form, addressed to Hugh J. Mackey, requiring him to appear before said district court at the next regular term thereof, to be holden at the courthouse in the city of El Paso on the first Monday in January, A. D. 1893, then and there to answer the plaintiff's petition filed in a suit in said court on the 26th day of October, 1892, wherein S. H. Newman was plaintiff, and Hugh J. Mackey was defendant, and that the file number of said suit was 1,726; and said citation further stated that the nature of plaintiff's demand is as follows, to wit, `Suit on a certain promissory note of date December 20, 1888,' without further statement; and the said citation required the sheriff to deliver to the said defendant, Hugh J. Mackey, in person, a true copy of said citation, and to make his return showing how the same was executed, and the said citation was dated and attested as follows:

"`Given under my hand and the seal of said court at office in El Paso, Texas, this the 1st day of November, A. D. 1892. Attest: J. A. Escajeda, Clerk District Court El Paso County, Texas, by J. Marr, Deputy.'

"But no seal of said court, or of any kind, was affixed or attached to said citation, and on the back thereof was indorsed:

"`File No. 1,726. District Court of El Paso County, Texas, January Term, 1893. S. H. Newman v. Hugh J. Mackey. Citation. Issued 1st November, 1893. J. A. Escajeda, Clerk District Court, by J. Marr, Deputy.

"`Filed 3rd day of January, 1893, J. A. Escajeda, Clerk, by ____, Deputy.'

"That, as shown by the sheriff's return thereon, the same came to the hands of the sheriff of El Paso county, Texas, on the 1st day of November, A. D. 1892, at 8 o'clock p. m., and was executed the 2d day of November, A. D. 1892, by delivering to Hugh J. Mackey, the within-named defendant, in person, a true copy of this writ, and said return is signed by H. R. Hillebrand, sheriff of El Paso county, Texas.

"(3) That the petition was filed in said cause No. 1,726, of S. H. Newman, plaintiff, against Hugh J. Mackey, on the 26th day of October, 1892, by the clerk of the district court of El Paso county, Texas, and is on a note for $559—said note bearing date December 20, 1888—alleged to have been executed by defendant to plaintiff, bearing interest at the rate of 12% per annum, providing for 10% attorney's fees, and alleged to have been transferred by plaintiff to Byron Sherman; and said petition also shows said note was protested, and claims protest fees of $5.50, and contains a prayer for judgment for said debt, costs, and general relief; and to the petition is attached a copy of the note, with indorsements. A true copy of said petition, with said note and indorsements, are set out in the second subdivision of the fourth paragraph of plaintiff's first supplemental petition, reference to which is here made for same.

"(4) That the note sued upon in the original cause, No. 1,726, bears date December 20, 1888, is for the sum of $559, due 90 days after date, waives grace and protest, and purports to have been executed for value received, and has the name `Hugh J. Mackey' (or `G.') signed thereto, and is payable to S. H. Newman, and provides for 12% per annum interest, together with all costs and expenses incurred, and attorney's fees of 10%, should judicial proceedings be used for collection. Said note is indorsed by S. H. Newman, and made payable to Byron Sherman, and is indorsed for collection by Byron Sherman, but said indorsements have all been erased. That said note was protested in due form on the 21st day of March, 1889, by William Crosby, notary public of El Paso county, Texas, and said protest was made for nonpayment.

"(5) That an execution was issued on the 19th day of June, 1894, by the clerk of the district court of El Paso county, Texas, upon the said judgment in cause No. 1,726; but it incorrectly recites that said judgment was recovered on the 11th day of January, 1894, instead of the 11th day of January, 1893. The execution is in the usual form, with certified cost bill, showing costs amounting to the sum of $7.75. The return on said execution shows that the same came to the hands of the sheriff on the 19th day...