Pantaze v. Fox-Head Spring Beverage Co.
| Decision Date | 13 December 1929 |
| Docket Number | (No. 3756.) |
| Citation | 23 S.W.2d 514 |
| Parties | PANTAZE v. FOX-HEAD SPRING BEVERAGE CO. |
| Court | Texas Court of Appeals |
Action by the Fox-Head Spring Beverage Company against Charles D. Pantaze. Judgment for plaintiff, and defendant brings error. Reformed, and affirmed, as reformed, on rehearing.
The Fox-Head Spring Beverage Company, plaintiff in the court below, was a corporation under the laws of Wisconsin. Its suit against Chas. D. Pantaze, commenced by a petition filed September 11, 1928, was for a balance of $402.65 which it claimed to be due and unpaid on an account covering merchandise it sold and delivered to him in 1926 and 1927, it seems. In its petition the beverage company alleged that Pantaze resided in the city of Birmingham, Alabama, and on September 17, 1928, it had him served in Birmingham with notice of its suit as provided in articles 2037 and 2038, R. S. 1925. A writ of attachment sued out by the beverage company on said September 11, 1928, was levied on real estate belonging to Pantaze situated in the city of Dallas, Tex., on said September 17, 1928. Pantaze did not file an answer to the suit, and judgment by default was rendered against him October 2, 1928, in favor of the beverage company, for said sum of $402.65 and for interest thereon, amounting to $62.43, or a total of $465.08. A motion by Pantaze to set aside the judgment filed during the term at which it was rendered was overruled November 27, 1928. The writ of error was sued out January 31, 1929, it seems.
E. G. Senter, of Dallas, for plaintiff in error.
Peyton A. Ellison, of Dallas, for defendant in error.
WILLSON, C. J. (after stating the case as above).
Several errors in the judgment are "apparent upon the face of the record." Article 1837, R. S. 1925. In the first place, it appears in the record that it was by default and rendered on October 2, 1928, the first day of the term of the court to which the suit was brought. The beverage company was not in any event entitled to such a judgment before the second day of that term. Articles 2152 and 2154, R. S. 1925; 34 C. J. 180; 15 R. C. L. 665. In the second place, the court undertook in it to foreclose the lien of the attachment levied on the land and to provide for the sale of the part thereof necessary to create a fund sufficient to satisfy the sum he adjudged in favor of the beverage company. It is expressly provided in the statute (article 301, R. S. 1925) that, when an attachment issued from a county court is levied upon land, In the third place, it is for a sum $20.22 in excess of the amount warranted by the allegations in the petition. The errors in the judgment, so far as it undertakes to foreclose the attachment lien, and so far as it is for an excessive amount, might be corrected here, but the error in the other respect cannot be, but requires a reversal of the judgment and a remanding of the cause to the court below for a trial on its merits.
In view of such a trial, we say with reference to such of Pantaze's contentions as are likely to arise then, that we think the trial judge did not err in holding that the beverage company could sue Pantaze in his court as it did (7 R. C. L. 1035), and did not err in holding that the account sued upon was an open one within the meaning of article 3736, R. S. 1925. 1 Texas Jur. 306.
On Motion of Defendant in Error for a Rehearing.
In the motion attention is called to the fact that the act of 1923 (Gen. Laws 38th Leg. p. 40) providing that a term of the county court of Dallas county at law which rendered the judgment in question here should begin on the first Monday of October, though not carried into the Revised Statutes of 1925, was continued in force by the provision in article 1970 of said Statutes. And in said motion attention is also called to the fact that in 1928, when said judgment was rendered, the first Monday in October was the first day of that month. It is insisted this court was...
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