Ponca Wholesale Mercantile Co. v. Alley

• Decision Date: 16 March 1964
• Docket Number: No. 7337,7337
• Citation: 378 S.W.2d 129
• Parties: PONCA WHOLESALE MERCANTILE COMPANY, Appellant, v. Roy Lee ALLEY et al., Appellees.
• Court: Texas Court of Appeals

Page 129

378 S.W.2d 129

PONCA WHOLESALE MERCANTILE COMPANY, Appellant, v. Roy Lee ALLEY et al., Appellees.

No. 7337.

Court of Civil Appeals of Texas, Amarillo.

March 16, 1964.

Rehearing Denied April 13, 1964.

Key, Carr & Clark, Lubbock, for appellant.

Thomas J. Griffith, Jr., Lubbock, for appellees.

DENTON, Chief Justice.

This case is before this Court by way of petition for writ of error filed by Ponca Wholesale Mercantile Company against Doy Nichols and H. P. Terry seeking to set aside a default judgment entered against Ponca. Articles 2249 and 2249a and 2255, Vernon's Ann.Tex.Civ.St.

On September 22, 1961, Ponca filed suit in the 47th District Court of Potter County against Roy Lee Alley for conversion of funds belonging to Ponca while an employee of that company. The suit sought recovery against Alley as principal and R. A. Pendergrass, Doy Nichols, H. P. Terry and W. L. Combes as sureties on the fidelity bond of Alley. These defendants were represented by two different law firms. On December 19, 1961, Nichols and Terry filed a cross-action against Ponca, and citation, with service thereon, was filed on December 22, 1961. The defendants' pleas of privilege were ultimately sustained and the case was ordered transferred to the 99th District Court of Lubbock County on October 3, 1962. Ponca's suit, on motion filed by its attorney, was dismissed without prejudice by the judge of the 99th District Court on March 5, 1963. Subsequent to the order of dismissal of the Ponca suit, Nichols and Terry took a default judgment on their cross-action against Ponca on March 23, 1963. It is this default judgment this petition for writ of error seeks to set aside.

Appellant Ponca attacks the default judgment on the following grounds: (1) the service of citation on Ponca was insufficient to confer jurisdiction in the trial court to enter the judgment on the cross-action; (2) the record does not affirmative show the service of citation was obtained on a person authorized by law to accept service for Ponca; and (3) the cross-action is not sufficient to support a judgment by default.

Before proceeding with a determination of appellant's points of error, we must consider and pass upon appellees' motion to dismiss the petition for writ of error. Respondents' motion to dismiss is primarily based on the ground the writ fails to name all parties with adverse interests to appellant's pointion, namely Alley, Pendergrass and Combes. Article 360, Texas Rules of Civil Procedure, provides a petition for writ of error 'shall state the names and residences of the parties adversely interested'. It has been held 'parties adversely interested' are parties whose interest in the subject matter of the proceeding is adverse to that of the parties seeking the writ of error or whose interest may be affected by the modification or reversal of the judgment in question. Sanitary Appliance Co. v. French (Tex.Civ.App.), 58 S.W.2d 159, (Error Dismissed); Highsmith v. Tyler State Bank & Trust Co. (Tex.Civ.App.), 194 S.W.2d 142, (Error Refused). Ponca's suit named Alley principal and Nichols and Terry along with Pendergrass and Combes as sureties on the fidelity bond. Subsequent to the filing of the cross-action of Nichols and Terry, the principal suit was dismissed. No affirmative relief was ever asserted by Alley, Pendergrass or Combes. When the principal case was dismissed these three defendants were no longer parties to the suit. These former defendant did not have an adverse interest which may be affected by this proceeding. We conclude the writ of error should not be dismissed on the ground the same fails to name all parties with an adverse interest. McPhaul v. Byrd (Tex.Civ.App.), 174 S.W. 644; City of Corpus Christi v. Scruggs (Tex.Civ.App.), 89 S.W.2d 458; First National Bank v. Cole (Tex.Civ.App.), 264 S.W. 926; Liquid Carbonic Co. v. Head (Tex.Civ.App.), 48 S.W.2d 464, (Error Dismissed). Appellees' contention that appellant having had actual or constructive notice of the judgment, was negligent in failing to appeal by the ordinary method is without merit. This record discloses appellant had no notice, actual or constructive, within the time allowed to pursue the ordinary appeals procedure. Neither can it be said appellant abandoned its right to appeal by failing to answer appellees' cross-action. Appellees' motion to dismiss is overruled.

In passing upon appellant's points of error we are concerned with a direct attack upon the default judgment brought by writ of error. In such a proceeding we are to look only to the alleged errors appearing on the face of the record. Texaco, Inc. v. McEwen (Tex.Civ.App.), 356 S.W.2d 809, (NRE); 3 Tex.Jurs.2d, Section 17, page 287, and cases cited therein. Appellant first attacks the service of citation had on the cross-action. There is no controversy but that Ponca Wholesale is a domestic corporation existing under the laws of Texas with its principal office located in Amarillo, Potter County, Texas. It is well settled that in order for a default judgment on a cross-action to stand, legal service of process on the plaintiff must be shown in the record. Early v. Carnelius, 120 Tex. 335, 39 S.W.2d 6.

The material part of Article 2029, V.A.T.S. provides:

'In suits against any incorporated company or joint stock association, the citation may be served on the President, Vice President, Secretary, Cashier, Assistant Cashier, or Treasurer of such company or association, or upon the local agent of such company or association in the county where the suit is brought, or by leaving a copy of the same at the principal office of the company during office hours.'

Article 2.11 of the Texas Bus.Corp.Act, V.A.T.S. provides in part:

'A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process,...