Smith v. Commercial Credit Corporation

• Decision Date: 22 September 1944
• Docket Number: No. 13548.,13548.
• Citation: 187 S.W.2d 360
• Parties: SMITH v. COMMERCIAL CREDIT CORPORATION.
• Court: Texas Court of Appeals

Page 360

187 S.W.2d 360

SMITH v. COMMERCIAL CREDIT CORPORATION.

No. 13548.

Court of Civil Appeals of Texas. Dallas.

September 22, 1944.

Rehearing Denied October 27, 1944.

Appeal from Dallas County Court; Tom Nash, Judge.

Suit by Commercial Credit Corporation against George W. Smith to recover balance due on a note and to foreclose lien of a chattel mortgage on automobile executed by defendant to secure payment of the note. From an order overruling defendant's motion to set aside a judgment, the defendant appeals.

Reversed and remanded.

Judgment reversed in 187 S.W.2d 363.

Richard B. Humphrey, of Dallas, and George W. Eddy, of Houston, for appellant.

Biggers, Baker, & Lloyd, of Dallas, for appellee.

LOONEY, Justice.

We think this Court erred in heretofore affirming the judgment appealed from; therefore the original opinion filed will be withdrawn and this opinion filed in lieu. The appeal is from an order overruling appellant's motion to set aside and hold for nought a judgment rendered against him on citation by publication. The following is deemed a sufficient statement of the case:

Commercial Credit Corporation sued George W. Smith to recover $532.94 principal, besides interest and attorney's fees, balance due on a note originally for $1000.94, payable to City Pontiac, Inc. (later transferred to plaintiff), given for part of the purchase price of a new 1941 Pontiac automobile; plaintiff also sought foreclosure of the lien of a chattel mortgage on the car, executed by Smith to secure payment of the note; plaintiff further sought the appointment of a receiver to take possession of the car. Leslie Clyde Smith was made a defendant, but, as he submitted to the judgment rendered, his connection with the case will not receive further notice. The court appointed a receiver, who immediately qualified; took possession of the car; asked the court for authority to sell—which was granted; the car was later sold, plaintiff being the purchaser on its bid of $250, which the court ordered held to await further proceedings. In plaintiff's original petition, defendant's residence was alleged to be in Dallas County, Texas, but at that time he was a member of the armed forces of the Government, stationed at Camp Pickett, Virginia. However, personal services not having been obtained, on April 23, 1943 (over four months after the institution of the suit), plaintiff's attorney made and filed an affidavit that the residence of defendant, George W. Smith, was unknown to affiant; therefore, prayed for service of citation by publication, which was later consummated. The court appointed an attorney ad litem to represent the defendant, who filed an answer setting up the fact that defendant was in the armed services of the Government; also interposed a general denial. The case was regularly tried on June 24, 1943, resulting in a judgment in favor of plaintiff, establishing the amount of its debt, principal, interest and attorney's fees; also foreclosure of the chattel mortgage lien on the car and proceeds after sale thereof; finding, among other things, that at the time of sale the reasonable value of the car did not exceed $250, and directed that the proceeds of sale held by the receiver be credited upon the judgment, but that no execution issue against the defendant for balance unpaid, as is usual in cases of personal judgment.

Thus matters stood until on October 23, 1943, when the defendant filed a motion praying that the judgment be opened; in other words, set aside, and that he be afforded an opportunity to urge defenses to the alleged cause of action; his material allegations being that the affidavit for citation by publication, stating his residence to be unknown, was false, in that, his residence at all times was well known by plaintiff to be in Dallas County; that the statement was made for the sole purpose of depriving defendant of actual notice of the pendency of the suit, and to obtain judgment during his absence.

At the outset, plaintiff urges a motion to dismiss the appeal on the ground that defendant's affidavit in forma pauperis, did not comply with Rule 355 of Texas Rules of Civil Procedure; hence jurisdiction was not conferred upon this court. Under Rule 355 a litigant is permitted to prosecute an appeal by filing with the clerk of court an affidavit stating "That he is unable to pay the costs of appeal or any part thereof, or to give security therefor." Defendant's affidavit, in the respect under consideration, stated: "That he has made diligent efforts to give an appeal bond in this cause, and is unable to do so by reason of his poverty; that his compensation from the Government has not yet begun to be paid, and that he has been unable to find profitable work which he is able to do."

We do not think it necessary, in order to satisfy its requirements, that the affidavit be phrased in the exact verbiage of the Rule; substantial compliance, in our opinion, was sufficient. If, under a reasonable construction of the language employed, the idea may be gleaned that defendant was unable to pay the cost, or any part thereof, or give security therefor, the Rule is satisfied. Defendant stated that after diligent efforts he was unable to give an appeal bond (security), by reason of his poverty (meaning indigence or state of need); that the compensation due him by the Government had not been paid; and, further, that he had been unable to find profitable work that he was able to do. Any interpretation of this language...