Sanchez v. Texas Industries, Inc., 5157
| Decision Date | 07 September 1972 |
| Docket Number | No. 5157,5157 |
| Citation | 485 S.W.2d 385 |
| Parties | Henry SANCHEZ, Petitioner, v. TEXAS INDUSTRIES, INC., Respondent. |
| Court | Texas Court of Appeals |
Patterson & Lamberty, Inc., J. Redwine Patterson, Thomas L. Kelly, Jr., Dallas, for petitioner.
DeVore, Bagby, McGahey, Ross & Burnett, Arlington, for respondent.
This is a writ of error proceeding pursuant to a default judgment, filed by Henry Sanchez. Plaintiff-Respondent Texas Industries, Inc., originally sued in Dallas County, Texas, Gregg Asphalt Co., Inc., on a sworn account in the amount of $38,427.02, attorneys' fees and costs. In this original petition it was alleged that Henry Sanchez was the president and agent for service of Defendant Gregg Asphalt Co., Inc., and that he lived in Brownsville, Texas. Citation was issued with a copy of the original petition attached, addressed to Gregg Asphalt Co., Inc., as Defendant, and the return thereof shows said Defendant was served on January 16, 1971, by service upon Henry Sanchez, President of Gregg Asphalt Co., Inc., in Cameron County, Texas. The citation was returned to the District Clerk of Dallas County, Texas, and was filed in the court papers January 22, 1971.
Thereafter, Plaintiff-Respondent Texas Industries filed an amended petition in which Gregg Asphalt Co., Inc., was still a Defendant and in which Henry Sanchez individually was made a party Defendant. Citation was issued by the District Clerk with a copy of the amended petition attached, addressed to 'Henry Sanchez-Defendant', and the return thereof shows Henry Sanchez was served August 4, 1971 in Cameron County, Texas. This citation was returned to the District Clerk of Dallas County, Texas, and was filed in the court papers August 27, 1971.
The amended petition sought judgment against Gregg Asphalt Co., Inc., and Henry Sanchez individually, upon the sworn account in the amount of $38,427.02, attorneys' fees and costs, the amount sued for being the identical amount sued for in the original petition.
The relief sought against Gregg in the amended petition is identically the same as that sought in the original petition. In addition to the allegations against Gregg Asphalt Co., Inc., the amended petition seeks judgment against Henry Sanchez, individually in the same amount as that sought against Gregg, and contains allegations of fraud against Sanchez.
Neither of said Defendants filed any answer or otherwise made any appearance in the cause. On September 7, 1971, the trial court entered a default judgment against both Defendants in the amount of $38,427.02, attorneys' fees, and costs. On September 10, 1971, the trial court entered a 'Statement of Facts' in the court papers, recited to contain the facts presented by Plaintiff at the court hearing, and upon which the judgment is said to be based.
On the date default judgment was entered (September 7, 1971), Plaintiff's attorney filed an instrument with the clerk certifying (pursuant to Rule 239a Texas Rules of Civil Procedure) the last known mailing address of the Defendant Henry Sanchez as '2929 International, Brownsville, Texas.'
Defendant Henry Sanchez filed a Petition for Writ of Error on February 11, 1972, pursuant to which he assails the trial court's judgment on three points of error in his original brief, and in his post-submission supplemental brief he asserts additional grounds in support of his first two points of his original brief.
Petitioner's first two points assert that the record does not affirmatively reflect jurisdiction over the person of Defendant Gregg Asphalt Co., Inc., or over the person of Defendant Henry Sanchez individually. We overrule these contentions. We believe the record clearly shows proper service of citation upon Gregg of the original petition, and proper service of citation upon Sanchez individually of the amended petition. As stated above, the cause of action and amount of money sought against Gregg in the amended petition is the same is that sought by Plaintiff-Respondent in the original petition. Since Gregg was properly served with citation with a copy of the original petition,...
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