Slattery v. Uvalde Rock Asphalt Co.
| Citation | 140 S.W.2d 987 |
| Decision Date | 10 May 1940 |
| Docket Number | No. 3666.,3666. |
| Parties | SLATTERY et al. v. UVALDE ROCK ASPHALT CO. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Jefferson County; W. S. Nichols, Judge.
Suit by the Uvalde Rock Asphalt Company against Anna Slattery and others to recover the balance due on a contract lien and to foreclose an assessment lien and a mechanic's and materialman's lien. From a judgment for plaintiff, defendants appeal.
Judgment reformed and, as reformed, affirmed.
D. L. Broadus, of Beaumont, for appellants.
Geo. A. Weller, of Beaumont, for appellee.
O'QUINN, Justice.
On the 11th day of September, 1939, on an instructed verdict, judgment was rendered in favor of appellee, Uvalde Rock Asphalt Company, against appellants, Anna, Mayme and Nora Slattery, for the principal sum of $397.20, interest in the sum of $226.16, and attorney's fees in the sum of $150, making a total recovery of $773.36, with interest at the rate of 7% per annum from date of judgment, and foreclosing "an assessment lien existing as of December 17, 1929, as well as a valid, binding and subsisting mechanic's and materialman's lien existing as of May 6, 1930, upon Lot Five (5) in Block Ten (10) of the Kirby Addition to the City of Beaumont," and decreeing "that said property be sold as under execution and the proceeds applied to the satisfaction of the judgment herein obtained and all costs of sale and costs of suit." The principal and interest of the judgment was the balance due on a paving certificate dated the 10th day of June, 1930, in the principal sum of $663, authorized by an ordinance duly passed by the City Commission of the City of Beaumont on the 15th day of April, 1930, directing and ordering paved the property described in the judgment. Subsequently, on the 6th day of May, 1930, appellants entered into a written contract creating a mechanic's and materialman's lien on the property described in the judgment, payable by the terms of the written contract as follows:
"July 10, 1930 $132.60
June 10, 1931 132.60
June 10, 1932 132.60
June 10, 1933 132.60
June 10, 1934 132.60"
The paving certificate provided for "a reasonable attorney's fee" on default by appellants in their payments, while the written contract executed by them provided for an attorney's fee of 10% of the amount of the obligation incurred by appellants under the mechanic's and materialman's lien. No point is made that appellee did not comply fully with its obligations in paving appellants' property.
The history of this litigation is as follows: On the 4th day of August, 1936, appellee filed its suit No. 48416 in the district court of Jefferson County against appellants, praying for judgment upon a promissory note in the sum of $92.61, and for foreclosure of a contract lien on lot 5, block 10 of Kirby Addition, being the property described in the judgment, supra. Citation was duly issued and served on appellants, who filed their answer. Subsequently, on the 2d day of March, 1937, appellants paid in full the indebtedness described in appellee's original petition.
On the 10th day of September, 1936, after appellants had answered, but before they had paid off and discharged the indebtedness described in the original petition, appellee filed its first amended original petition in cause No. 48,416, repleading the indebtedness described in the original petition, and as a new cause of action pleading the assessment lien, the contract lien, and the balance due on these liens as given above, praying for judgment for the balance due, and for foreclosure of the liens; in this petition appellee prayed for judgment for attorney's fees at 10%. Citation did not issue on the first amended original petition until the 5th day of July, 1938; prior to the issuance of citation appellants made no appearance in cause No. 48,416, subsequent to the date they filed their original answer on the 12th day of August, 1936, in answer to the original petition. Without the service of citation on the first amended original petition, and without any answer filed thereto by appellants, on the 13th day of May, 1938, appellee took a default judgment against appellants on the amount due on the paving certificate and the contract lien as above described, being $397.80 principal, with interest from the 18th day of May, 1931, at 7%, and for an attorney's fee in the sum of $100, with foreclosure of the assessment lien.
On the 25th day of June, 1938, appellants filed in the district court of Jefferson county their suit against appellee, No. 52,870, in the nature of a direct attack against the default judgment rendered against them on the 13th day of May, 1938, alleging that the default judgment was void and pleading the facts upon which that contention was based. On the 2d day of July, 1938, appellee filed its answer to cause No. 52,870, consisting of a general demurrer and general denial. On July 6, 1938, the court entered its judgment in cause No. 52,870, on an agreement of the parties, vacating, setting aside and annulling and making void and of no further force and effect the default judgment rendered in No. 48,416 on the 13th day of May, 1938. Upon the entry of that order, appellee paid the costs in cause No. 52,870 and under its direction the clerk of the district court of Jefferson County, on the 5th day of July, 1938, issued citation to appellants in cause No. 48,416, which was served on them on the 6th day of July, 1938. On July 30, 1938, appellants appeared in cause No. 48,416 and filed their answer therein, pleading in defense to appellee's cause of action, as plead in its first amended original petition, the statutes of limitations of two and four years. On the 28th day of September, 1938, appellee filed in cause No. 48,416 its second amended original petition, pleading generally the same facts and praying for the same relief as in its first amended original petition, and praying for attorney's fees of 10%. On the pleadings of both parties, cause No. 48,416 was set for trial in October, 1938, but was not reached for trial.
On the 2d day of December, 1938, appellee filed a motion in cause No. 52,870, described above, and its amended answer pleading by way of cross action against appellants the same cause of action plead in its second amended original petition. Appellee's original counsel had withdrawn from the cause, and this motion and cross action was filed by new counsel. For ground of relief in its motion and cross action, appellee plead that the agreed judgment in cause No. 52,870, as described above, was not a final judgment, and that the same was entered without its knowledge or consent, and prayed that the judgment by agreement be vacated and that cause No. 52,870 be tried on appellants' bill of review and on its motion and cross action. On the 2d day of December, 1938, appellee's motion was heard by the court and in all things overruled, which order became final.
On the 7th day of December, 1938, appellee filed a new suit in the district court of Jefferson county, being No. 53,948, in the nature of a bill of review, praying that the agreed judgment entered in cause No. 52,870 be reviewed. In January, 1939, appellee filed a petition in this court praying for leave to file a petition praying for a mandamus against appellants and one of the district judges of Jefferson county, compelling the judge to enter an order vacating the agreed judgment entered in cause No. 52,870, and to proceed to trial of that cause; this court refused permission to file the petition for mandamus. It was the theory of appellee that all three causes, Nos. 48,416, 52,870, and 53,948, were pending on the docket of the district court of Jefferson county at the same time and, on its motion, the clerk of the district court of Jefferson county set all three cases for trial on September 9, 1939.
On September 7, 1939, appellee filed its third amended original petition in cause No. 48,416, designated by it as its second amended original petition. Appellants filed motions to have causes No. 48,416 and No. 52,870 stricken from the active docket; they answered cause No. 53,948 by pleading demur...
To continue reading
Request your trial
-
Arce v. Burrow
...of Dickinson v. Bowles, 663 S.W.2d 845, 849 (Tex.App.--Houston [14th Dist.] 1983, writ dism'd); Slattery v. Uvalde Rock Asphalt Co., 140 S.W.2d 987, 991 (Tex.Civ.App.--Beaumont 1940, writ ref'd); 59 TEX. JUR.3D Process, Notices, and Subpoenas § 8 In addition, even as long ago as 1883, Texas......
-
American Indemnity Co. v. Hidalgo County
...or enlarge the cause of action originally and consistently theretofore asserted against him. Art. 2001, R.S.1925; Slattery v. Uvalde, etc., Co., Tex.Civ.App., 140 S.W.2d 987; Phillips v. The Maccabees, Tex.Civ.App., 50 S.W.2d Appellant contends in its first proposition that the county and t......
-
Landram v. Robertson
...to take notice of all amended pleadings filed in this case with the leave of the court. Rule 62, T.R.C.P.; Slattery v. Uvalde Rock Asphalt Co., Tex.Civ.App., 140 S.W.2d 987; Davis v. Wichita Bank & Trust Co., Tex.Civ.App., 286 S.W. 584; Tyson v. First State Bank & Trust Co., Tex.Civ.App., 1......
-
Campbell v. Campbell
...of the parties, the court, at a subsequent term, may vacate a judgment and reinstate the cause on its docket as a pending action.' 140 S.W.2d 987, writ. ref. This case was decided before the effective date of our present Rules of Civil Procedure, September 1, 1941. 3 Rule 329b, subd. 5, of ......