Russell v. Finance Corporation of America

• Decision Date: 14 November 1931
• Docket Number: No. 12560.,12560.
• Parties: RUSSELL v. FINANCE CORPORATION OF AMERICA et al.
• Court: Texas Court of Appeals

44 S.W.2d 1003

RUSSELL v. FINANCE CORPORATION OF AMERICA et al.

No. 12560.

Court of Civil Appeals of Texas. Fort Worth.

November 14, 1931.

Rehearing Denied January 9, 1932.

Appeal from Tarrant County Court; P. J. Small, Judge.

Action by the Finance Corporation of America against Leslie Russell and others, in which Marmon Company of Fort Worth intervened. From an adverse judgment, defendant appeals.

Affirmed.

W. W. Alcorn and M. Kleberg, both of Fort Worth, for appellant.

R. F. Milam and Mack & Mack, all of Fort Worth, for appellees.

DUNKLIN, J.

This appeal has been prosecuted by Leslie Russell, defendant in the court below, from a judgment awarding a recovery against him in favor of plaintiff Finance Corporation of America for $421.47, and a further recovery against him in favor of the Marmon Company, of Fort Worth, intervener, for the sum of $240.79, with interest, and for foreclosure of two liens on a certain Marmon automobile; the first, a superior lien, being in favor of plaintiff, and the second lien, subordinate to the first, being in favor of the intervener. The judgment further decrees a recovery in favor of the plaintiff against C. C. Peters and J. D. Hollingsworth, as sureties on a replevin bond executed by defendant Russell, as principal, to enable him to recover possession of the car after it has been taken into the possession of the officer levying a writ of sequestration sued out by plaintiff; that recovery being in aid of and to insure payment of the judgment in plaintiff's favor on the note, as provided by articles 6852 to 6855, Rev. Civ. Statutes 1925. But those sureties on the replevin bond have not prosecuted any appeal from the judgment rendered against them.

The trial was before the court without a jury, and no statement of facts has been brought to this court.

The citation which was served on defendant, appearing in the transcript, shows that he was cited to appear on the first Monday in September, 1930 (not 19230 as alleged in defendant's motion to quash the citation). And while it did not embody a statement of the nature of plaintiff's demand, it specifically referred defendant for that information to a certified copy of plaintiff's petition, attached to the citation, and made a part thereof. Service of the citation and copy of the petition was made on the defendant August 12, 1930.

The failure of the citation to embody a statement of the nature of plaintiff's demand was made one of the grounds of defendant's motion to quash the citation. That motion was filed September 2, 1930, and on September 3, 1930, defendant filed an answer to plaintiff's petition, consisting of a general demurrer and a general denial, preceded by the statement that it was filed subject to his motion to quash the citation and his plea in abatement, "and only in the event said motion and said plea in abatement are overruled."

The trial was had on October 10, 1930, at which hearing defendant appeared and announced ready for trial, and after the motion to quash citation was heard and overruled the case was heard and determined on its merits, all parties appearing and participating; no motion being then made by defendant for a continuance until the next term or next appearance day of the court. The defendant was a resident of Tarrant county, where the suit was instituted, and service was made upon him in that county. If the judgment had been one by default, it might be said that the court never...