Selman v. Lynch, 524

• Decision Date: 17 December 1970
• Docket Number: No. 524,524
• Citation: 461 S.W.2d 452
• Parties: Jack SELMAN, Appellant, v. A. E. LYNCH, Appellee.
• Court: Texas Court of Appeals

Page 452

461 S.W.2d 452

Jack SELMAN, Appellant, v. A. E. LYNCH, Appellee.

No. 524.

Court of Civil Appeals of Texas,

Tyler.

Dec. 17, 1970.

Rehearing Denied Jan. 14, 1971.

James N. Parsons, III, Law Offices of James R. Paxton, Palastine, for appellant.

Alton King, Palestine, for appellee.

McKAY, Justice.

Appellee Lynch sued appellant on a note for $2,000 dated May 30, 1959, and due September 1, 1959. Suit was filed on October 31, 1961, and citation was issued by the Clerk on the same day. There is no further record of this citation. Another citation was issued by the Clerk on March 8, 1962, and there is no record of this citation being served or returned.

On November 30, 1964, a third citation was issued by the Clerk, and it was served on the appellant by a deputy sheriff the following day, December 1, 1964. Such citation was returned to and filed by the Clerk on December 2, 1964.

Trial was before the Court without a jury and judgment was entered against appellant for the principal amount of $2,000 and interest in the amount of $1,280.

In response to appellant's request, the trial court made and filed his findings of fact and conclusions of law. Among these were findings: (1) that plaintiff instituted his suit with a bonafide intention that process be timely issued and served, and that he exercised due diligence that such process be issued and served; (2) that there was no delay caused by or attributable to the plaintiff or his attorney in the issuance and service of process on the defendant; (3) that there was no negligence on the part of the plaintiff or his attorney in the issuance and service of process on the defendant; (4) that there was no lack of proper diligence on the part of the plaintiff or his attorney in the issuance and service of process on the defendant; (5) that plaintiff instituted his cause of action, evidenced by the note, within less than four years after it accrued, and that said note was not barred by the statute of limitation.

Appellant's first point is that the trial court erred in finding that the note was not barred by the four-year statute of limitation, Article 5529, Vernon's Ann.Tex.Civ.St. We sustain this point. It appears to be the settled law in Texas that a plaintiff, upon filing a suit, has a duty to exercise reasonable diligence in perfecting service of process, and that such duty is a continuing one. Universal Wheel Shield, Inc. v. Laco Auto Leasing, Inc., 429 S.W.2d 942 (Tex.Civ.App., Tyler, 1968, n.w.h.); Reed v. Reed,158 Tex. 298, 311 S.W.2d 628 (1958); Buie v. Couch, 126 S.W.2d 565 (Tex.Civ.App., Waco, 1939, writ ref.); Gatlin v. Mason, 459 S.W.2d 200 (Tex.Civ.App., Tyler, 1970, n.w.h.).

The Statement of Facts on file here is void of any evidence about the intention of appellee or his attorney concerning process being issued and served, or that there was no delay by plaintiff or his counsel in the issuance and service of process, or that neither plaintiff or his attorney was negligent or lacked proper diligence in the issuance or service of process. If appellee or his attorney made efforts to locate appellant or to direct the sheriff or his deputies how to serve appellant, appellee failed to establish such facts in the record. The only evidence in the record is that suit was filed on October 31, 1961 on a note due September 1, 1959, and that citation was issued on October 31, 1961, again on March 8, 1962, and again on November 30, 1964, and that the last citation was served on appellant on December 1, 1964. Appellant testified he lived in Anderson County all of the time involved herein, though not at the same location, and that he knew the sheriff personally who was in office from 1961 to 1964.

In the case at bar, there was a period of five years and three months from September 1, 1959, the date the cause of action accrued,...