North British & Mercantile Ins. Co. v. Storms
| Citation | 24 S.W. 1122 |
| Parties | NORTH BRITISH & MERCANTILE INS. CO. v. STORMS et al. |
| Decision Date | 07 February 1894 |
| Court | Court of Appeals of Texas |
Action by H. L. Storms against the North British & Mercantile Insurance Company on a policy of fire insurance, in which Thomas B. Dockery and John M. Dockery were interveners. From a judgment for plaintiff for the use of the interveners, defendant appeals. Reversed.
Clark, Dyer & Bolinger, for appellant. S. L. Samuels, E. A. McKenny, and Wm. M. Flournoy, for appellees.
Appellee Storms brought suit against appellant, alleging substantially that appellant had insured certain premises belonging to the appellee against fire; that there was a total loss of the house by fire; and that, by reason of the contract of insurance, he was entitled to recover the sum of $400, the full amount stipulated in the policy. He further alleged that by the terms of the policy the loss was made payable to Thomas B. Dockery and John M. Dockery, as their interest might appear, and prayed that said Dockerys be cited to appear, and show what, if any, interest they had in said policy. Citations were issued and served on each of the Dockerys as defendants, and also on John M. Dockery as agent of appellant. On May 6, 1891, which was default day, appellees, the two Dockerys, filed a plea of intervention, claiming the entire proceeds of said insurance policy, and adopted the plaintiff's petition as their own. Judgment by default was taken against appellant in favor of Storms for $413.44, but the cause was held open for adjustment between Storms and the Dockerys. On May 12, 1891, appellant moved to set aside the judgment by default, on the ground that it had a meritorious defense, and had not been served with citation, in that the said John M. Dockery, to whom citation was delivered as appellant's agent, was interested in the cause adversely to appellant. The defense stated was that Storms had violated the terms of the policy by obtaining concurrent insurance without appellant's consent. It was further shown in said motion that, except as it might stand charged by the service of citation on John M. Dockery as its agent, appellant had no actual knowledge that the suit had been filed until the day the judgment by default was taken, when its secretary, T. A. Manning, who resided in Dallas, Tex., upon his return from a temporary absence from the state, found in his office the copy of citation which had been served on John M....
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Barton v. Montex Corporation
...and did not affect the validity of the default judgment; it was only voidable at the election of the garnishee. Ins. Co. v. Storms, 6 Tex. Civ. App. 659, 24 S. W. 1122; Eagle Pharmacy v. Lamb (Tex. Civ. App.) 265 S. W. 594; U. S. Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S. E. 342; 32 Cyc.......
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