Stafford Const. Co., Inc. v. Martin

• Decision Date: 03 December 1975
• Docket Number: No. 6476,6476
• Citation: 531 S.W.2d 667
• Parties: STAFFORD CONSTRUCTION COMPANY, INC., Plaintiff in Error, v. Burt MARTIN, Sr. and Burt Martin, Jr., Defendants in Error.
• Court: Texas Court of Appeals

Page 667

531 S.W.2d 667

STAFFORD CONSTRUCTION COMPANY, INC., Plaintiff in Error, v. Burt MARTIN, Sr. and Burt Martin, Jr., Defendants in Error.

No. 6476.

Court of Civil Appeals of Texas,

El Paso.

Dec. 3, 1975.

Shafer, Gilliland, Davis, Bunton & McCollum, Elton Gilliland, Ray Stoker, Odessa, for plaintiff in error.

Clifford, Sims & Kidd, John C. Sims, Richard Hubbert, Lubbock, for defendants in error.

OPINION

OSBORN, Justice.

This is an appeal by Writ of Error from a default judgment. The judgment is reversed and the cause remanded for a trial on the merits.

Burt Martin, individually and as next friend for Burt Martin, Jr., alleged that on November 9, 1974, his son sustained severe personal injuries in a two-vehicle accident on State Highway 83 between Seagraves and Denver City, Texas. He alleged that at the accident site, the highway was under construction and that Stafford Construction Company, Inc., who was doing the construction and repair work, was negligent and that such negligence was a proximate cause of the accident and injuries sustained by his son, for which he sought substantial damages. The petition alleged that service of process could be had upon Robert H. Stafford, the registered agent of the defendant corporation. Citation which was issued in this case stated in part:

'CITATION

'THE STATE OF TEXAS

'To Robert H. Stafford

Registered Agent for Stafford Construction Company, Inc.

1603 13th St

Lubbock, Texas

'Defendant_ _, in the hereinafter styled and numbered cause:

'You are hereby commanded to appear before the 106th District Court of Gaines County, Texas, to be held at the courthouse of said County in the City of Seminole, Gaines County, Texas, by filing a written answer to the petition of plaintiff * * *'.

It was duly served on April 20, 1975.

No answer was filed and on May 20, 1975, the trial Court entered a default judgment. On July 7, 1975, a Petition for Writ of Error was filed in the trial Court and all necessary procedures have been taken to invoke our appellate jurisdiction to review such judgment. This remedy brings before the appellate court the whole case for the review of errors properly assigned, and it is not necessary that Plaintiff in Error excuse its failure to defend the case in the trial Court or to show that it has a meritorious defense. Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App.--El Paso 1973, no writ); Middlemas v. Wright, 493 S.W.2d 282 (Tex.Civ.App.--El Paso 1973, no writ).

By its first point of error, Stafford Construction Company, Inc. contends that the citation was defective because it was directed not to the defendant in the trial Court, but to an alleged agent, and the citation actually commanded answer by such agent, not the named defendant.

Prior to the adoption of the Rules of Civil Procedure, Article 2022 provided that 'Citations shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be, and command him to summon the defendant to appear and answer * * *'. Now Rule 101, Tex.R.Civ.P., provides that the citation '* * * shall be directed to the defendant and shall commant him to appear * * *'.

In every case with which we are familiar, the court has held that a citation directed to an agent of the defendant rather than to the defendant itself is defective. In Texas & Pac. Ry. Co. v. Florence, 14 S.W. 1070 (Tex.App.1889), the citation commanded the sheriff to 'summon Will Montague, acting agent of the Texas and Pacific Railroad Company;'. The appellate court held that while the citation may be served upon the local agent, that citation, or the command, must be to summon the corporation, and not its agent, and therefore held that it was error to overrule a motion to quash said citation.

That same court in a writ of error case in Mutual Life Ins. Co. of New York v. Uecker, 46 Tex.Civ.App. 84, 101 S.W. 872 (1907, no writ), had before it a citation which commanded the officer to 'summon Edwin Chamberlain, agent of the Mutual Life Insurance Company of New York * * *'. In reversing the default judgment, the court said:

'* * * The citation did not direct the officer to summon the Mutual Life Insurance Company, the defendant in the case, but directed that a person alleged in the petition to be the agent of the defendant should be summoned. This was not a compliance with the statute, which required the citation to command the officer to summon the defendant to appear and answer the plaintiff's petition, and hence the citation in this case did not confer jurisdiction on the court below to render the judgment by default against the plaintiff in error. (Cases cited).'

A default judgment was again attacked in American Citizens' Labor & Protective Inst. of Texas v. Henderson, 295 S.W. 701 (Tex.Civ.App.--Texarkana 1927, no writ), where the citation issued by the clerk directed the sheriff or any constable '* * * to summon the commissioner of insurance of the state of Texas to be and appear * * *.' In reversing the default judgment, the court said:

'The judgment rendered is assailed in this appeal upon the ground that the trial court did not have jurisdiction of the person of the plaintiff in error because the citation issued was void. It will be observed that it commanded the sheriff to summon the commissioner of insurance, who, presumably, was made the agent or attorney of the plaintiff in error, upon whom process of this character might be served. We are of the opinion that a citation which directs the sheriff to summon the agent to appear and answer in a suit is not sufficient to give the court jurisdiction to render a judgment by default against the principal.'

Writ of error served as the basis for the appeal from a default judgment in Temple Lumber Co. v. McDaniel, 24 S.W.2d 518 (Tex.Civ.App.--Beaumont 1930, no writ). In that case, the citation commanded the...