Sindorf v. Cen-Tex Supply Co.
| Decision Date | 13 May 1943 |
| Docket Number | No. 4290.,4290. |
| Parties | SINDORF v. CEN-TEX SUPPLY CO. et al. |
| Court | Texas Court of Appeals |
This is an appeal by writ of error for revision and correction of a judgment of the District Court of Ward County, 109th Judicial District.
The judgment was rendered on October 23, 1941, in a cause in which Cen-Tex Supply Company, a co-partnership composed of R. O. Noah, W. G. Hellinghausen and T. C. Kelley, was plaintiff, and Kenneth Slack, J. H. Sindorf and H. R. Sindorf were defendants. The suit was for $882.65 for debt as specified in an itemized, verified account for services performed for and materials furnished to defendants by plaintiff, and to foreclose a mechanic and materialman's lien covering such account on an oil and gas lease on the N.E. 1/4 of the S.E. 1/4 of Section 145, Block 34, H. & T. C. Ry. Co. Survey, in Ward County. None of the defendants filed answer, appeared or participated in the trial of the case, either in person or by attorney. The judgment recites: "The defendants having been duly cited according to law and wholly making default and filed no answer," that a jury was waived and the cause submitted to the court, and that "plaintiffs do have and recover of and from the defendants as and for their debt the sum of $882.65 and all costs of suit," and forecloses the materialman's lien on the oil and gas lease and provides for order of sale. H. R. Sindorf alone sued out and perfected writ of error.
The first point on which the appeal is predicated is the entry of final judgment in the cause without all parties defendant having been cited. This is assigned as fundamental error.
The transcript discloses that plaintiff in error, H. R. Sindorf, and his co-defendant, J. H. Sindorf, were legally cited, but that the citation directed to defendant Kenneth Slack was served by the sheriff by delivering a true copy of the citation and accompanying copy of plaintiff's petition to T. F. Slack, "his attorney." This service was insufficient. Rule No. 106, Texas Rules of Civil Procedure. The law is well settled that on appeal from a judgment by default prosecuted in the suit in which the same was rendered, the judgment will be reversed for fundamental error unless the record contains a citation showing due service thereof, even though the judgment contains a recital that defendant was duly served with citation. Castleberry v. Castleberry, 134 Tex. 409, 135 S.W.2d 701; Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W. 2d 934; DeProy v. Progakis, Tex.Com. App., 269 S.W. 78, and cases there cited.
This rule is applicable, though the liability of the party...
To continue reading
Request your trial
-
Dosamantes v. Dosamantes
...Austin 1971, no writ); Shaw v. Allied Finance Company, 330 S.W.2d 690 (Tex.Civ.App., Dallas 1959, rev. other grnds); Sindorf v. Gen-Tex. Supply Co., 172 S.W.2d 775 (Tex.Civ.App., El Paso 1943, no writ); Neal v. Roberts, 445 S.W.2d 58 (Tex.Civ.App., Houston 1st, 1969, no writ); Broussard v. ......
-
Union Pacific Corp v. Legg, 03-00-00661-CV
...the default judgment cannot stand against Union Pacific Corporation. See HB & WM, Inc. v. Smith, 802 S.W.2d at 282; Sindorf v. Cen-Tex Supply co., 172 S.W.2d 775, 776 (Tex. Civ. App. El Paso 1943, no writ). We hold For the reasons stated, we reverse the judgment below and remand the cause t......
-
Ratcliff v. Sherman, 1282
...v. Mack Financial Corporation, 452 S.W.2d 552, 555 (Tex.Civ.App. Houston (1st Dist.) 1970, writ ref'd n.r.e.); Sindorf v. Cen-Tex Supply Company, 172 S.W.2d 775, 776 (Tex.Civ.App. El Paso 1943, no A judgment by default cannot be made final as against the defaulting defendant when the cause ......
-
Lytle v. Cunningham
...Christi 1983, no writ); Neal v. Roberts, 445 S.W.2d 58, 60 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ); Sindorf v. Cen-Tex Supply Co., 172 S.W.2d 775, 776 (Tex.Civ. App.-El Paso 1943, no writ). When there are co-defendants, and the trial court did not have personal jurisdiction over on......