Scucchi v. Woodruff

• Decision Date: 21 December 1973
• Docket Number: No. 17459,17459
• Citation: 503 S.W.2d 356
• Parties: Gerald Doyne SCUCCHI, Appellant, v. Karolyn Doris Scucchi WOODRUFF, as next friend for Michael Andrew Scucchi, et al., Appellee.
• Court: Texas Court of Appeals

Page 356

503 S.W.2d 356

Gerald Doyne SCUCCHI, Appellant, v. Karolyn Doris Scucchi WOODRUFF, as next friend for Michael Andrew Scucchi, et al., Appellee.

No. 17459.

Court of Civil Appeals of Texas Fort Worth.

Dec. 21, 1973.

Pope, Hardwicke, Hobbs, Christie & Montgomery, and George F. Christie, Fort Worth, for appellant.

English, English & Landrith, and Kris Landrith, Arlington, for appellee.

OPINION

BREWSTER, Justice.

Pursuant to an application therefor filed in their behalf by their mother, Karolyn Doris Woodruff, as their next friend, the trial court on February 9, 1973, rendered a judgment changing the last names of two minor children from Scucchi to Woodruff.

The petition alleged that Gerald Doyne Scucchi, the children's father could be served with citation in Tulsa, Oklahoma, at 1722 South Carson Avenue.

In so far as the father is concerned, the judgment changing the last names of his children from Scucchi to Woodruff was a default judgment, and it is the father that has here appealed from that decree. The original names and the birth dates of the two minors were Michael Andrew Scucchi, a boy born of October 6, 1970, and Ginger Ann Scucchi, a girl born on June 14, 1963. The petition alleged that the children's mother, Mrs. Woodruff, was divorced from their father, Gerald Doyne Scucchi, in 1971 and that she later, in the summer of 1972, married a Mr. Woodruff.

The clerk issued a citation directed to Mr. Scucchi. The return on the citation recited in substance that it was executed at 1722 South Carson Avenue in the County of Tulsa, by delivering to the within named Gerald Doyne Scucchi, in person, a true copy of the citation together with the accompanying copy of plaintiff's original petition, having first endorsed thereon the date of delivery. The return was signed and sworn to by one Wayne A . Martin before Ida L. Roberts, a notary public for Tulsa County, Oklahoma, on January 3, 1973. The said Wayne A. Martin failed to swear in the return before the notary that He was a disinterested person and that he was competent to make oath of the fact.

The case was tried without a jury. Mr. English, attorney for petitioner, testified at the hearing of the motion for new trial that he proved up and took a default judgment in the case on February 9, 1973. The father of the children did not file an answer in the case and he was not personally present or represented at the trial. The first appearance made by the father in the case was on March 9, 1973, at which time his attorney filed a motion for new trial in the case in his behalf.

Mr. English testified at the hearing of the motion for new trial that when he filed the petition in the case he also mailed to the defendant, Scucchi, in Tulsa at an address that Scucchi had provided him, a copy of the petition and a proposed waiver for him to sign. When English received no reply he testified that he had the citation issued and served on Scucchi in Tulsa, Oklahoma, on January 3, 1973. He testified that Scucchi then called him long distance, and discussed the matter with him. On January 16, 1973, English mailed a letter directed to Scucchi, at the address given him by Scucchi, advising him of the time and place where the trial would be held.

Defendant's second point of error is that the trial court erred in holding that he, Scucchi, had been cited in the case by personal service, because the return on the service is patently defective.

We sustain this point.

The fact that Scucchi did not assign as error in him motion for new trial the matter complained of in this point of error is immaterial. This is so because a motion for new trial is not a prerequisite to an appeal in a non-jury case such as this. See 3 Tex.Jur.2d 460, Appeal and Error, Sec. 184.

Art. 5929, Vernon's Ann.Texas St., is the statute that provides for the changing of a minor's name. Although that statute does not specifically provide for the giving of notice to the father in instances where such a suit is filed, it is now established in Texas that the natural father of a minor child has an interest in a suit brought by the child's natural mother in the child's behalf to change the child's last name to that of the mother's new husband and that when such a suit is filed the father must be given notice thereof. See Eschrich v. Williamson, 475 S.W.2d 380 (Beaumont, Tex.Civ.App., 1972, ref., n.r.e.), in which case the point is fully discussed.

The question involved here then boils down to whether or not the notice that was given to the defendant, Scucchi, in this case was legally sufficient to put defendant in court. We hold that it was not because the return on the citation purportedly served upon him was fatally defective.

The evidence in this case does not establish whether at the time he was allegedly served in Oklahoma the defendant had become a non-resident of Texas, or whether he was just temporarily absent from Texas, but that does not matter here because the requirements for service in both instances are the same under Rule 108, Texas Rules Civil Procedure. The undisputed evidence shows that the citation in question was served upon him in Tulsa, Oklahoma. At that time he was either just temporarily absent from the State or he was a non-resident of the State.

Rule 108, T.R.C.P., prescribes the form of notice that must be served upon a defendant in all cases in which notice is required where that defendant is either absent from Texas or is a non-resident of Texas. The form of such notice is the same in either case. The same rule also provides as follows: '. . . the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant; And such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof.' (Emphasis ours.) The rule further requires that the return be signed and sworn to by the person making the return.

As stated above, although Wayne A. Martin, the person serving the citation on Scucchi signed and swore to the return, He failed to swear therein that he was a disinterested person competent to make oath of the fact.

The return on the citation was therefore fatally defective and was insufficient to put defendant in court and was insufficient to support the default judgment that was rendered. This point has been directly passed on in the case of Upham v. Boaz Well Service, Inc., 357 S.W.2d 411 (Fort Worth, Tex.Civ.App., 1962, no writ hist.) wherein the court said at page 418 the following:

'As heretofore mentioned David W. Upham, one of the petitioners, was deemed by the trial court to have been subject to its jurisdiction. He was a non-resident. The state of his residence was California. In relation to the citation necessary in such cases it is proper to refer to Texas Rules of Civil Procedure, rule 107 'Return of Citation', and T.R.C.P. 108, 'Defendant Without State'. Therefrom it appears mandatory that the return of the person making service upon such a defendant show that he is in no manner interested in the cause in question; that a true copy of the citation with a true and correct copy of the plaintiff's petition attached thereto was delivered to the within named defendant in person; and such return must be sworn to. The return made on the citation purportedly served upon David W. Upham was fatally defective and insufficient to support default judgment as against him, either in his individual capacity or as trustee. Jurisdiction over him was never acquired.'

The following relates to the point under discussion and is from 34 Tex.Jur.2d 207--208, Judgments, Sec. 277: 'In order to obtain jurisdiction over the defendant, and thereby authorize the rendition of such a judgment (default) against him, the procedure for issuance and service of process must be strictly followed. . . . Nor will a return of process that does not comply with legal reguirements . . . support a judgment.' (Emphasis ours.)

In further support of our holding that the return on the citation was fatally defective and would not support a default judgment see Midwest Piping & Supply Co. v. Page, 128 S.W.2d 459 (Beaumont, Tex.Civ.App., 1939, writ ref.).

The plaintiff argues that Scucchi had actual notice of the pending suit, a copy of the petition, and a letter from Mr. English advising him of the time and place of the hearing, and that such notice was legally sufficient to meet all the requirements of notice as laid down by the U.S. Supreme Court in the case of Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) and that the notice Scucchi actually had put him in court. We overrule this contention.

In speaking of the notice required by the Constitution to constitute due process that court held sufficient at page 550, 85 S.Ct. at page 1190:

'. . . notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'

The law is that in situations where notice is required to be given and in which no particular method of giving or form of notice is prescribed by state law then notice to a party that is sufficient to meet the test laid down in the Armstrong case, supra, would be sufficient.

But, if a state statute or rule of court prescribes the method by which notice must be given in a particular instance, and if it...