Temple Lumber Co. v. McDaniel
| Decision Date | 15 January 1930 |
| Docket Number | (No. 1923.) |
| Citation | 24 S.W.2d 518 |
| Parties | TEMPLE LUMBER CO. v. McDANIEL et ux. |
| Court | Texas Court of Appeals |
Action by M. W. McDaniel and wife against the Temple Lumber Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.
R. E. Minton, of Lufkin, and Minton & Minton, of Hemphill, for plaintiff in error.
Adams & McAlister, of Nacogdoches, for defendants in error.
O'QUINN, J.
Defendants in error, M. W. McDaniel and his wife, Ola McDaniel, brought this suit in the district court of Sabine county, Texas, to recover damages in the sum of $1,650, claimed by them against plaintiff in error, which they alleged they suffered by reason of the construction and maintenance by plaintiff in error of a tramroad through their premises, resulting in damage to and destruction of their lands for farm purposes, the purpose for which they used their said premises. Citation was issued June 28, 1928, and commanded the sheriff or any constable of Sabine county to summon "G. S. Smith, secretary and treasurer, Temple Lumber Company, whose principal office is at Pineland, Sabine county, Tex., to be and appear before the honorable district court of Sabine county, Texas, at the next regular term thereof, to be holden at the courthouse in Hemphill, Tex., on the third Monday in September, 1928, same being the 17th day of September, 1928, then and there to answer to the plaintiffs' petition, filed in a suit in said court on the 18th day of April, 1928, wherein M. W. McDaniel et ux. are plaintiffs and Temple Lumber Company is defendant," etc. The citation further commanded the officer serving same,
The sheriff's return is: "Came to hand on the 29th day of June, 1929, at ____ o'clock ____ m., and executed in Sabine county, Texas, by delivering to the within named defendant, in person, a true copy of this citation at the following times and places, to wit:
Date Time Place and Course Mileage
Name Month Day Year Hour Min. — M
and distance from courthouse
G. S. Smith 7 31 1928
Temple Lumber Co. corporation, by delivering to its secretary G. S. Smith at Pineland, Texas, in the office of the Temple Lumber Co. at 2:30 p. m. on day as aforesaid.
"S. H. Hall, Sheriff, Sabine County, Texas
"By ______, Deputy."
No answer was filed by the Temple Lumber Company, nor did it enter its appearance in any wise. March 26, 1929, the case was regularly called for trial, and the defendant not having answered, or in any wise entered its appearance, judgment nil dicit was taken by the plaintiff, and further hearing postponed to April 8, 1929, at which time plaintiffs offered their evidence, and judgment was rendered in their favor against the defendant Temple Lumber Company for $1,650, with 6 per cent. interest on same from that date, and for all costs of suit. The case is before us on writ of error by the Temple Lumber Company.
Plaintiff in error's first proposition is that "a citation, in an action against a corporation, which directs the officer to summon an agent of the corporation and not the corporation, is void and will not support a judgment by default without answer or appearance." Article 2022, R. S. 1925, sets forth the requisites of a citation. It says 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 the plaintiff's petition at the next regular term of the court, stating the time and place of holding the same." The citation herein did not comply with this requirement. As shown supra, it commands the officer to summon G. S. Smith, the secretary and treasurer of the defendant corporation, Temple Lumber Company, to appear and answer. This was not a command to serve the defendant corporation, and will not sustain the judgment by...
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Whisenant v. Thompson Bros. Hardware Co.
...would be insufficient to support the default judgment. Higgins v. Shepard, 48 Tex.Civ.App. 365, 107 S.W. 79; Temple Lumber Co. v. McDaniel, Tex.Civ.App., 24 S.W.2d 518. The mandatory requirement of the statute that the citation state the names of all has no application to this indorsement. ......
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...that citation shall be directed to the defendant is mandatory. See also Fort Worth Lloyds v. Johnson, supra; Temple Lumber Co. v. McDaniel, Tex.Civ.App. Beaumont 1930 24 S.W.2d 518; Brecheen v. State, Tex.Civ.App. El Paso 1936, 89 S.W. The answer of appellant in defense of the present suit ......
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...states the names correctly and a certified copy of it is served with the writ. Battle v. Eddy, 31 Tex. 368; Temple Lumber Co. v. McDaniel et al., Tex.Civ.App., 24 S.W.2d 518; Breechen et ux. v. Wink Independent School Dist., Tex.Civ.App., 89 S.W.2d 293; Moran Oil & Gas Co. et al. v. Anderso......
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...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 sheriff or any constable to summon 'G. S. S......