Pierce-Fordyce Oil Ass'n v. Staley

• Decision Date: 22 November 1916
• Docket Number: (No. 1063.)
• Citation: 190 S.W. 814
• Parties: PIERCE-FORDYCE OIL ASS'N et al. v. STALEY.
• Court: Texas Court of Appeals

190 S.W. 814

PIERCE-FORDYCE OIL ASS'N et al. v. STALEY.

(No. 1063.)

Court of Civil Appeals of Texas. Amarillo.

November 22, 1916.

On Motion for Rehearing, January 3, 1917.

Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.

Action by C. R. Staley against the Pierce-Fordyce Oil Association and others. From judgment for plaintiff, defendants appeal. Reversed and rendered.

J. Shirley Cook, J. E. Doran, and Harry Mason, all of Vernon, for appellants. Berry, Stokes & Morgan, of Vernon, for appellee.

HENDRICKS, J.

On August 22, 1910, the appellant Pierce-Fordyce Oil Association obtained a judgment by default in one of the justice courts of Dallas county, Tex., against the appellee for the sum of $55.70, said judgment based upon a verified account. This judgment recited that the defendant Staley was duly cited, as required by law. The judgment does not seem to have been introduced in evidence, but is pleaded by the appellant Pierce-Fordyce Oil Association, and, as we interpret plaintiff Staley's supplemental petition, the same was not denied, but admitted.

In March, 1915, the sheriff of Wilbarger county, J. D. Key, levied an execution upon said judgment on certain automobile casings, but before the sale of the seized property the plaintiff Staley sought and obtained a temporary injunction from the district judge of that district, restraining the sale of said property, on the ground that he was never served with citation in the justice court suit in Dallas county, and did not owe the debt evidenced by said judgment to the appellant. At the regular term upon the merits, the jury, on the submission of special issues, found in favor of plaintiff on both questions upon which the district court perpetuated the injunction.

It is assigned that the testimony of Staley, contradicting the officer's return of service, is not sufficiently corroborated by other testimony, and it is argued that the evidence is not of that clear and satisfactory nature established by the decisions of this state as that said officer's return should be set aside.

The principal reliance by appellant is upon the case of Randall v. Collins, 58 Tex. 232, where it is said by Chief Justice Gould:

"* * * If equity will allow one who has been guilty of no fault or negligence to contradict the sheriff's return by parol evidence for the purpose of having an unjust judgment by default set aside, we are of opinion that it should require the evidence to be clear and satisfactory. It is not like an ordinary issue of fact to be determined by a mere preponderance of testimony."

Chief Justice Gould, citing the case of Driver v. Cobb, 1 Tenn. Ch. 490, further asserted that one witness alone would not suffice to successfully impeach the return of an officer upon a citation, but there should be two witnesses or one witness with strong corroborative circumstances. It was further said:

"* * * Upon general principles, it would seem essential to the peace and quiet of society that these solemn official acts should not be set aside with the same ease as an ordinary act in pais."

That part of the opinion, that evidence to set aside a judgment must clearly and satisfactorily contradict the sheriff's return, seems to be the general rule, without any opposing authority that we are able to find, in other jurisdictions. Matchett v. Liebig, 20 S. D. 171, 105 N. W. 171; Smoot v. Judd, 184 Mo. 545, 83 S. W. 493; Jensen v. Crevier, 33 Minn. 373, 23 N. W. 542; Huntington v. Crouter, 33 Or. 414, 54 Pac. 209, 72 Am. St. Rep. 729; Connell v. Galligher, 36 Neb. 760, 55 N. W. 233; Abraham v. Miller, 52 Or. 14, 95 Pac. 816. All those cases cite, and some of them quote, from the Texas case of Randall v. Collins, supra. The rule seems to be subsequently recognized by the following Texas authorities: Gatlin v. Dibrell, 74 Tex. 38, 11 S. W. 909; Wood v. Galveston, 76 Tex. 130, 13 S. W. 228; Land Co. v. Graham, 24 Tex. Civ. App. 528, 60 S. W. 476; Kempner v. Jordan, 7 Tex. Civ. App. 278, 279, 26 S. W. 871.

It is noted that the Supreme Court said, relative to the impeachment of the return of citation:

"It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony."

We admit, of course, that the obligation of the rule would not require uncontradicted proof, and, necessarily, it is hard to determine and enunciate just what quantum of proof would meet the rule so as to demonstrate an equitable application to a record except one of exclusion.

The case of Matchett v. Liebig, supra, quoting from the case of Bank v. Ridpath, 29 Wash. 687, 70 Pac. 139, states the rule in a form as follows:

"The return of service, either by a sheriff or by a disinterested person authorized by law to make it, is prima facie evidence of the material facts recited therein, and a court of equity should not set aside a judgment except upon clear, satisfactory, and convincing proof of lack of service of process by the person making it."

This character of proof, bounded by the strict rule mentioned, is placed "upon grounds of public policy."

That a fact must be shown by "clear and satisfactory" evidence means that the nature of the case demands a closer scrutiny of the weight of the evidence than in an ordinary controversy. Peterson v. Bauer's Estate, 76 Neb. 652, 107 N. W. 993, 111 N. W. 361, 362, 124 Am. St. Rep. 812. We of course assume that preponderance, which ordinarily means the greater weight of the testimony, would still apply; and it is also the case that the slightest difference in the weight of the evidence in ordinary cases is a preponderance. But this case starting with the strong presumption founded on public policy, of the verity of an officer's return, illumintates the meaning of Chief Justice Gould that this was not like an "ordinary issue of fact...