Sgitcovich v. Sgitcovich

• Decision Date: 27 June 1951
• Docket Number: No. A-3098,A-3098
• Citation: 150 Tex. 398,241 S.W.2d 142
• Parties: SGITCOVICH v. SGITCOVICH.
• Court: Texas Supreme Court

Page 142

241 S.W.2d 142

150 Tex. 398

SGITCOVICH v. SGITCOVICH.

No. A-3098.

Supreme Court of Texas.

June 27, 1951.

Rehearing Denied July 25, 1951.

Dixie & Ryan, Walter S. Hart and Ira v. Hart, Houston, for petitioner.

Julia Mae Anderson, Houston, for respondent.

GRIFFIN, Justice.

In this cause, petitioner, Annie Sgitcovich, filed suit in a district court of Harris County, Texas, against her sister, Lucy Sgitcovich, respondent, for an accounting and recovery of a money judgment against Lucy. The petition alleged that both parties were femes sole and residents of Harris County, Texas, and that the last known address of Lucy was 4212 Capitol Avenue, Houston, Texas. Suit was filed November 14, 1949, and on November 15, 1949 citation for personal service on Lucy was delivered to the sheriff of Harris County, Texas. On November 17, 1949 the sheriff returned this citation unserved with the notation that he was informed at 4212 Capitol Avenue that Lucy never did live at that address and (those at that address) did not know where she lived. On November 23, 1949 an alias citation to Lucy was issued and delivered to the sheriff of Harris County, Texas, for personal service. On December 28, 1949 this citation was returned by the sheriff of Harris County with the notation that he could not locate Lucy 'after making many and various trips to places where information that she could be located.' On December 7, 1949 pluries citation was issued to Lucy and on December 10, 1949 was delivered to the sheriff of Galveston County, Texas, for service. This was returned by the sheriff December 29, 1949, not served because the sheriff was 'unable to locate the within named defendant (Lucy) in Galveston County, Texas.' On December 27, 1949 Annie's attorney filed an unsworn application to serve Lucy under Rule 106, Rules of Civil Procedure, and as grounds for substituted or constructive service alleged that applicant had attempted, in various ways to obtain personal service upon Lucy, 'but it has been impossible to obtain the exact address of the said Lucy Sgitcovich whereby citation may be served upon her in person as will be hereinafter set out.' She alleges the issuance and return of the various citations above set out and that the officers receiving such citations had made diligent effort to find Lucy, but to no avail. That effort to serve had been made at 4212 Capitol Avenue, Houston, Texas, and at various other places where information was furnished that Lucy might be found, but no personal service had been obtained. Further it was alleged that the address of 4212 Capitol Avenue, together with the telephone number of Mrs. William (Henny) Anderson, who resided at such address, had been given by Lucy to certain specified persons where mail or messages would reach Lucy. Among these persons who had been given such information it was alleged were E. C. Clason of Galveston, a real estate agent who collected rentals on Galveston property belonging to Lucy and which he remitted to Lucy monthly at 4212 Capitol Avenue. It was alleged that one Arthur J. Henck, another real estate agent had called the phone number at such address, and although he was told Lucy did not live at 4212 Capitol Avenue, or was her whereabouts known at such address, Lucy came to Henck's office in Galveston immediately thereafter in response to the phone call. It was further alleged that Lucy had addressed a letter to one Mrs. M. M. La Fleur, a tenant occupying property in Galveston belonging to Lucy, and that Lucy had shown 4212 Capitol Avenue, Houston, Texas, as her return address. It was further alleged that Lucy had an attorney who had an office in Houston, Texas, who was at the time of the filing of the application representing Lucy in another and different suit between Annie and Lucy, and the attorney had been asked by the sheriff of Harris County either to accept service for Lucy, or to furnish Lucy's address to the sheriff, which the attorney had declined to do, claiming that he did not know Lucy's address; but that such attorney had told another party that Lucy came to his office frequently and that he would advise such party when Lucy came to see him, but the attorney had failed to do so; that a private detective had been employed to locate Lucy but that he had been unable to do so. It was further alleged that Lucy was sending post cards through the United States mails to Annie which contained derogatory remarks about Annie, and that report had been made to U. S. Postal authorities and that such authorities had been unable to contact Lucy to date of application. It was further alleged that Lucy was hiding her identity from those attempting to serve her personally with citation and that Lucy was concealing her identity and whereabouts in order to avoid service of citation in the case, and that it was impractical and impossible to obtain personal service upon Lucy. It was alleged that Lucy's attorney; her friend, Mrs. William (Henny) Anderson, who resides at 4212 Capitol Avenue, Houston; E. C. Clason, real estate agent of Galveston; Miss Lena Stipanovic, an employee of Humble Oil & Refining Company in Houston, a friend of Lucy's; and Mrs. M. M. La Fleur of 2106 Avenue J, Galveston, all knew of the whereabouts of Lucy and could get her notice of such citation. It was asked that Annie be permitted to serve Lucy by leaving citation with a copy of the petition with some one over 16 years of age at 4212 Capitol Avenue, and by leaving a copy with petition attached with all five above named, except Mrs. William (Henny) Anderson, 'and thereby notifying and forwarding said citation with copy of said petition attached to Miss Lucy Sgitcovich for her attention.' On December 26, 1949, Honorable Phil D. Woodruff, District Judge, upon presentation of the application, entered an order granting same, and directing that Lucy be served by leaving a copy of the citation with petition attached at 4212 Capitol Avenue, and with the four other persons named in the application. On December 28, 1949 a fourth citation was issued to Lucy and delivered to the sheriff of Harris County, who filed his return with the district clerk on January 9, 1950, showing that he had delivered the citation to the Harris County residents as directed by the court's order, and all of the parties were above 16 years of age. On December 28, 1949 a citation to Lucy was likewise issued and delivered to the sheriff of Galveston County on December 29, 1949 and was returned by him on December 30, 1949, showing that he had left a true copy of the citation, together with copy of petition with the two Galveston residents 'as per orders of the court under Rule 106, Rules of Civil Procedure.'

On January 19, 1950, Miss Lena Stipanovic and Mrs. Henny Anderson filed an affidavit in the cause wherein they swore that citation had been left with each of them for service upon Lucy, but that neither of them knew her present address, and that they had not been able to notify Lucy of the citation and petition being left with them, and they had no way of notifying her of such service upon them. On Januart 9, 1950, the attorney, with whom citation and copy of the petition had been left for service upon Lucy, filed his affidavit that he was not Lucy's attorney in this cause, had not been employed by Lucy in this cause, and would not accept employment from her to represent her in this cause; neither was he an agent to accept service, nor upon whom service for Lucy could be had; that Lucy's usual place of business, or her usual abode, was not at his law offices in Houston, nor did he reside at the usual place of business or abode of Lucy. It is to be noted that nowhere, in his affidavit, does he state that he is unable to contact Lucy or deliver to her the citation and copy of the petition, or that he does not know Lucy's address, or residence, or whereabouts, or that he had not delivered or forwarded the citation or copy left with him to Lucy. He does not deny that he is her attorney in the other and different suit.

On March 10, 1950, the district court started a hearing in the cause, and in its judgment, dated March 30, 1950, found that Lucy had been 'duly served with process, as required by law, in accordance with orders of this court as provided under Rule 106 of the Texas Rules of Civil Procedure,' and Lucy having made default and not appearing, the court heard the evidence and rendered a personal judgment for Annie against Lucy as prayed for by Annie, and also for all costs of court. On June 3, 1950, Lucy, through her attorney in this cause, filed a petition for writ of error to the Court of Civil Appeals and deposited cash for costs. In this petition it is alleged that judgment by default was rendered March 30, 1950, against Lucy and in favor of Annie, and that citation in said cause was not served on Lucy or on anyone authorized by her to receive a citation, and that Lucy did not participate either in person or by attorney in the trial of the cause wherein judgment was rendered. On July 17, 1950 Annie, by her attorney, filed a motion requesting the trial court to make findings of fact as to certain transactions occurring in the court's presence prior to entry of judgment March 30, 1950, and that the findings be included in the transcript sent to the Court of Civil Appeals. Attached to such motion were affidavits of an attorney who represented Annie all through this litigation, and also one Earl Earhart. On July 26, 1950 the court entered an order that the motion and affidavit attached be included in the transcript. On July 27, 1950 Lucy, through her attorney, filed a motion accompanied by affidavits of Lucy, and Mrs. Henny Anderson, (which affidavits deny statements in Annie's motion and affidavit) and asked that her motion and accompanying affidavits be included in the transcript on appeal. On July 28, 1950 the court ordered that Lucy's motion and affidavit be sent up in the record.

A statement of facts...