Oetting v. Mineral Wells Crushed Stone Co.

• Decision Date: 30 April 1924
• Docket Number: (No. 7158.)
• Citation: 262 S.W. 93
• Parties: OETTING et al. v. MINERAL WELLS CRUSHED STONE CO.
• Court: Texas Court of Appeals

262 S.W. 93

OETTING et al. v. MINERAL WELLS CRUSHED STONE CO.

(No. 7158.)

Court of Civil Appeals of Texas. San Antonio.

April 30, 1924.

Rehearing Denied May 28, 1924.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Suit by the Mineral Wells Crushed Stone Company against W. C. Oetting and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Carroll McConnell, of Palo Pinto, for appellants.

Ritchie & Ranspot, of Mineral Wells, for appellee.

FLY, C. J.

This suit was instituted by appellee against W. C. Oetting and W. J. Hale, to have a certain judgment in the county court of Palo Pinto county declared null and void and to perpetually enjoin W. C. Oetting, in whose favor the judgment was rendered, and W. J. Hale, a constable, who was about to levy an execution issued by virtue of such judgment, from levying said writ of execution and selling appellee's property to satisfy it. A temporary writ of injunction was issued, which, on a final trial, was made perpetual, and the judgment of the county court was declared null and void. The judgment was vacated on the ground that the suit was filed against the Mineral Wells Crushed Stone Company, a corporation, and citation issued to Geo. P. Maury, general manager of the Mineral Wells Crushed Stone Company, and the judgment was not against the corporation nor against the manager of the corporation, but was against the Mineral Wells Crushed Stone Company, which was not described as a corporation, a joint-stock company, an association, or a partnership, and that therefore the judgment was null and void.

The facts show that the citation issued to Geo. P. Maury, general manager of the Mineral Wells Crushed Stone Company, a joint-stock company, that it had in the petition been alleged to be a private corporation, and the citation was served on the general manager, named, of the Mineral Wells Crushed Stone Company. The citation was served on April 7, 1920, and a judgment by default was rendered against the Mineral Wells Crushed Stone Company on February 22, 1921. On July 23, 1921, a writ of error was applied for by the Mineral Wells Crushed Stone Company to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, and the cause was duly filed in that court. One of the grounds for the writ of error was that the plaintiff in error had never been served with citation. The cause was dismissed by the Court of Civil Appeals, because briefs had not been filed in time by the plaintiff in error, and a motion for rehearing was overruled. The judgment in the county court recites that the defendant Mineral Wells Crushed Stone Company was duly cited, but wholly made default.

When the appellee herein sued out a writ of error to the Court of Civil Appeals of the Second District, and filed its briefs therein, it made itself a party to the suit, and the judgment of dismissal for failure to file the briefs in time was a binding judgment against it, and it could not set up the invalidity of the judgment from which it perfected its writ of...