De Proy v. Progakis

• Decision Date: 25 February 1925
• Docket Number: (No. 625-4140.)
• Citation: 269 S.W. 78
• Parties: DE PROY et al. v. PROGAKIS.
• Court: Texas Supreme Court

269 S.W. 78

DE PROY et al. v. PROGAKIS.

(No. 625-4140.)

Commission of Appeals of Texas, Section A.

February 25, 1925.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by August Progakis against Ogda De Proy and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals (259 S. W. 620), and defendants bring error. Reversed and remanded.

Cardwell & Bennett, of Burkburnett, and Bonner, Bonner & Sanford, of Wichita Falls, for plaintiffs in error.

Wayne Somerville, C. C. McDonald, and B. Y. Cummings, all of Wichita Falls, for defendant in error.

CHAPMAN, J.

August Progakis brought this suit in one of the district courts of Wichita county, against Ogda De Proy and August De Proy to recover an undivided one-half interest in an improved business lot in Wichita Falls, and asked for other relief not necessary to mention here. Progakis alleged that he was entitled to the relief prayed for by virtue of a contract between him and John De Proy, deceased, and that the defendants were the only heirs of John De Proy. The plaintiff did not plead in what proportions the defendants claimed title to the lot. Plaintiff recovered an undivided one-third interest in the lot against both defendants, and was given other relief not necessary to mention. The record shows August De Proy to be a minor. No citation is shown to have been served on the minor, and no answer was filed for him. The only showing that the minor was properly before the court is the statement in the final judgment that defendants appeared in person and by attorney, and this further statement in the final judgment:

"It further appearing to the court that the defendant, August Deproy, is a minor under the age of 21 years; that necessity exists for the appointment of a guardian ad litem, and the court appointed ____ Bennett to act as guardian ad litem for said minor in the trial of this cause, and who did so appear and represent said minor on the trial hereof."

Plaintiff in error, on motion for rehearing in the Court of Civil Appeals, for the first time raised the question that the record failed to show that the trial court had jurisdiction over the person of the minor in that it did not show that he was served with citation. This contention was overruled by the Court of Civil Appeals, and the judgment of the trial court affirmed. 259 S. W. 620.

The minor could not appear in person nor by an attorney of his own selection, but could only appear by a guardian ad litem appointed by the court, then the only showing that the minor was properly before the court is the quoted extract from the final judgment, which does not state that the minor was served with citation. A judgment against a minor partakes of the nature of a judgment by default in that, in an ordinary judgment by default, the defendant does not appear in person nor by attorney, and in judgments against minors the minor cannot appear in person nor by attorney of his selection.

The law seems to be well settled that, on appeal from a judgment by default prosecuted in the suit in which the same was rendered, the judgment will be reversed for fundamental error, unless the record contains a citation showing due service thereof, even though the judgment contains a recital that defendant was duly served with citation. Blossman v. Letchford et al., 17 Tex. 647; Burditt v. Howth, 45 Tex. 466; Bates v. Casey & Swasey, 61 Tex. 592; Bomar v. Morris, 59 Tex. Civ. App. 378, 126 S. W. 663; Shook v. Laufer (Tex. Civ. App.) 84 S. W. 277; Carlton v. Miller, 2...