Perkins v. Dunlavy

• Decision Date: 29 February 1884
• Docket Number: Case No. 1800.
• Citation: 61 Tex. 241
• Parties: B. K. PERKINS v. CLARA A. DUNLAVY ET AL.
• Court: Texas Supreme Court

61 Tex. 241

B. K. PERKINS

v.CLARA A. DUNLAVY ET AL.

Case No. 1800.

Supreme Court of Texas.

Feb. 29, 1884.

APPEAL from Fort Bend. Tried below before the Hon. Wm. H. Burkhart.

Suit for a tort filed on the 13th day of February, 1882, by appellant against J. F. Dyer (the original defendant), seeking to recover actual and exemplary damages alleged to have been sustained by him by reason of an indictment which was presented against Perkins in the district court of Fort Bend county charging him with having swindled Dyer, it being alleged that the presentment of the indictment was procured by Dyer, and that the prosecution was instigated, encouraged and carried on by him; that he acted with malice toward Perkins, and without probable cause.

Citation issued to Bexar county, March 31, 1882, and was served on Dyer April 22, 1882.

At the first term after service, Dyer, as his first step in the case, filed (on the 24th of April, 1882) before return day his motion to quash the citation for two reasons, one of which, and the one relied on, was that it did not state the nature of the plaintiff's demand, which motion was sustained on the 28th of April, 1882, default day, and the citation was quashed; the case was continued for the term, and was adjudged an appearance case to the next term of the court, and plaintiff Perkins duly excepted to this ruling. At the same term of the court, on the 25th day of April, 1882, the clerk in his handwriting entered on the motion docket, at the verbal request of one of defendant's attorneys, a rule for security for costs, and on the same day the rule was sustained, and plaintiff's (Perkins') attorneys being present, accepted notice of the rule, and the bond for costs was filed April 28, 1882, on default day.

This entry by the clerk, on the motion docket, plaintiff Perkins contended, was an appearance by defendant, and that by this act of defendant's attorneys he had entered an appearance in the case, and thereby waived any defect there may have been in the citation; the court held that it did not constitute an appearance.

At the same term, on the 28th of April, 1882, plaintiff filed a motion to enter judgment by default against defendant because he had not filed an answer in the cause. This motion to enter judgment by default was not ruled on by the court until after the motion to quash the citation had been sustained and the continuance entered.

Defendant Dyer filed his answer to the merits on the 12th day of May, 1882, before the adjournment of the April term, 1882.

At the next term of the court an order for scire facias to make Mrs. S. C. Dyer, the executrix, and the heirs of Dyer parties defendant was made, Dyer having died July 2, 1882. Mrs. Dyer, the executrix, was never served and made a party, and she died also. The present defendants, as the heirs and legatees of J. F. Dyer, were made defendants, and they answered to the merits and pleaded in abatement of the action, that it was one to recover damages for malicious prosecution, and being for a tort was a personal action, and died with the defendant J. F. Dyer, and could not be maintained or further prosecuted after his death against his legal representatives. At the same term, plaintiff filed a motion to enter judgment by default nunc pro tunc as of the 28th of April, 1882, against Dyer, with writ of inquiry to be executed against present defendants, which motion was based on two grounds:

1. That the citation served on Dyer in Bexar county, and which the court quashed, was sufficient to compel Dyer to plead at the appearance term, or suffer the consequences of a judgment by default.

2. That if the said citation was defective and insufficient, that defendant had voluntarily entered his appearance in the case by causing the entry of the rule for costs. Which motion the court overruled and plaintiff excepted.

At the same term, the plea in abatement by the appellees, heirs and legatees of the original defendant, J. F. Dyer, was sustained, and the cause dismissed at plaintiff's costs, and he excepted.

Geo. W. & F. K. Duff, for appellants, cited: Arts. 1251, 1281, 1282, 1285 and 1286, R. S.; Zipp v. Kerr, Law Review, September 11, 1883; Ricks v. Pinson, 21 Tex., 507;Ward v. Ringo, 2 Tex., 420;Johnson v. Smith, 14 Tex., 412;Holman v. Chevaillier, 14 Tex., 340;O'Connell v. State, 18 Tex., 343;Mitchell v. Overman, 103 U. S., 62.

Peareson & McCamly, for appellees, cited: R. S., art. 1248; Watson v. Loop, 12 Tex., 14;Taney v. Edwards, 27 Tex., 224;Gibbs v. Belcher, 30 Tex., 79;Harrison v. Moseley, 31 Tex., 608;Ferrill's Adm'r v. Mooney's Executors, 33 Tex., 219;Galveston City R'y Co. v. Nolan, 53 Tex., 139; Broom's Legal Maxims, p. 904 et seq.; Chitty's Pleadings, 1st vol., star p. 68; Kent's Commentaries, p. 416, 1st vol. and note C.; Blackstone's Com., 2d vol., 3d book, art. 302; Williams on Executors, 1st vol., star p. 560; Id., 2d vol., star pp. 1229, 1230 and 1231; Iredell on Executors, pp. 453, 592; Morris v. Carson, 7 Cowen, 281;Hayden v. Vreeland, 18 Am. Rep., 723;Grubbs, Adm'r, v. Sult, 34 Am. Rep., 765.

WILLIE, CHIEF JUSTICE.

It is unnecessary for us in the present case to decide as to the validity of the citation served upon Dyer, or as to whether or not the filing of a motion for security for costs, or of a notice and interrogatories to take the depositions of a witness, amount to such an appearance by a defendant as will authorize a judgment by default.

The application for judgment nunc pro tunc was based upon the ground that the district judge erred in quashing the citation, and holding the defendant was not in court in such manner that a judgment by default could not be taken against him. Admitting for the purposes of this appeal that the judge did err in such ruling, it was an error or incorrect action in a matter of law which cannot be revised or reversed at a subsequent term upon a motion to enter a different judgment nunc pro tunc.

It is well settled that judicial errors in entering up an order at a former term which was not...