Texaco, Inc. v. McEwen

• Decision Date: 23 March 1962
• Docket Number: No. 15996,15996
• Citation: 356 S.W.2d 809
• Court: Texas Court of Appeals
• Parties: TEXACO, INC., Petitioner, v. Faye McEWEN, Respondent.

Page 809

356 S.W.2d 809

TEXACO, INC., Petitioner, v. Faye McEWEN, Respondent.

No. 15996.

Court of Civil Appeals of Texas, Dallas.

March 23, 1962.

Rehearing Denied April 20, 1962.

Thompson, Knight, Wright & Simmons, Pinkney Grissom and David S. Kidder, Dallas, for petitioner.

Fanning, Billings, Harper, Pierce & Gilley, and Woodgate, Richards & McElhaney, Dallas, for respondent.

WILLIAMS, Justice.

This case reaches this Court by petition for Writ of Error filed by Texaco, Inc., against Faye McEwen, a feme sole, seeking to set aside a default judgment against petitioner. Arts. 2249, 2249a and 2255, Vernon's Ann.Civ.St.

On September 20, 1960 Faye McEwen, sued three defendants, Warren A. Roach, d/b/a Bob Roach Texaco Service Station; Texaco, Inc.; and L. F. Corrigan. In her petition in the District Court she alleged that on February 19, 1960 she was caused to fall and injure herself while crossing a driveway of the Bob Roach Texaco Service Station in Dallas, Texas. She alleged that each of the named defendants were negligent and sought recovery, jointly and severally in the amount of $56,486.73. Her petition alleged that 'plaintiff is a resident of Dallas County, Texas; defendant, Warren A. Roach can be served for process at the Bob Roach Texaco Service Station, 4700 block Lemmon Ave., Texaco, Inc. is a corporation licensed to do business in this State and can be served for process, through one of its agents, 3900 Singleton Blvd., Dallas, Texas; L. F. Corrigan can be served for process at the Corrigan Tower Building, Dallas, Texas.' The petition did not allege any legal relationship between the three named defendants.

Citation, with return thereon, was filed on September 23rd, 1960, the essential part of said return being as follows:

'Came to hand on the 20th day of Sept. 1960 at 11:39 o'clock A.M.

'Executed at Dallas, Texas, within the County of Dallas at _____ o'clock _ M on the day of ___ 19 __, by delivering to the within named Warren A. Roach, d/b/a Bob Roach Texaco Service Station, Texaco, Inc. by delivering to Warren A. Roach on September 20, A.D.1960 at 2:10 o'clock P.M., and L. F. Corrigan on September 22, A.D.1960 at 2:25 o'clock P.M., defendants, each, in person, a true copy of this citation together with the accompanying copy of this petition, having first indorsed on same the date of delivery.'

The return was signed by M. M. Gossett, Deputy for Roby Love, Constable, Precinct No. 1, Dallas County, Texas. Thereafter answers were filed by Warren A. Roach, d/b/a Bob Roach Texaco Service Station and by L. F. Corrigan. On October 19, 1960 default judgment was entered against Texaco, Inc. in the sum of $30,000, plus cost, said judgment reciting that Texaco, Inc. 'though duly served with process had failed to appear and therefore made default.' In the judgment of October 19, 1960 no disposition was made of the other two defendants. However, on November 22, 1960 Faye McEwen voluntarily non-suited Warren A. Roach, d/b/a Bob Roach Texaco Service Station and L. F. Corrigan. In January 1961 execution was issued and levy was attempted against Texaco, Inc. It was alleged that this was the first notice that Texaco, Inc. had that suit had been filed against it and that default judgment had been taken. Thereafter a motion to vacate said default judgment was filed in the 44th District Court of Dallas County, Texas. The trial court granted the motion and the default judgment was set aside by order dated January 20th, 1961.

Original application for Writ of Mandamus was then made by Faye McEwen in the Supreme Court of Texas in Cause styled: McEwen v. Harrison et al. The Supreme Court in its opinion, 345 S.W.2d 706, granted the Writ of Mandamus and ordered the trial court to vacate the order setting aside the default judgment. The Supreme Court, speaking through Chief Justice Calvert, pointed out that the only question passed upon was whether or not the trial court had the power to set aside a default judgment after the expiration of more than 30 days from its entry even when the record upon which default judgment was based reflected that the court did not have jurisdiction of the person of the defendant at the time it was entered. The Court said:

'We hold that appeal by writ of error or a bill of review of set aside the judgment are the exclusive methods by which Texaco may have the default judgment vacated or set aside. * * * Our judgment here is without prejudice to the rights of Texaco, Inc. to file an appeal by writ of error or to file a bill of review to set aside the default judgment against it.'

Pursuant to instructions of the Supreme Court an order was entered on May 4, 1961 by the District Court setting aside its prior order vacating the default judgment. Prior thereto, on April 28, 1961, petition for Writ of Error was perfected to this Court.

Petitioner directly attacks the default judgment rendered against it in three points of error, (1) because jurisdiction of the person of petitioner has not been obtained; (2) because the record shows that service of citation and petition were not had upon petitioner; and (3) because the record did not affirmatively reflect that service of citation and petition was had upon petitioner in accordance with the applicable statutes.

Before proceeding to a consideration of petitioner's points of error it becomes necessary for us to consider and pass upon respondent's motion to dismiss the writ of error. The gravamen of respondent's motion to dismiss is that the writ of error was not filed within 6 months of the judgment rendered on October 19, 1960. It is without dispute that petition for writ of error was filed within 6 months following November 22, 1960, the date of the order of non-suit of the two remaining defendants. We are unable to agree with respondent's contention that petitioner has failed to meet the jurisdictional requirements concerning filing the writ of error within 6 months following final judgment. The applicable statute Art. 2255, V.A.C.S. provides: 'The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.' The question, therefore, is whether the judgment of October 19, 1960, wherein a default judgment was rendered against Texaco, Inc. only, was a 'final judgment' within the meaning of this statute. The order of October 19, 1960 was not a 'final judgment' which would have been appealable. It showed upon its face that it did not dispose of all of the parties to the action, namely, Roach and Corrigan. It was, therefore, and interlocutory order. Respondent, before the Supreme Court on application for writ of mandamus, admitted that the order of October 19, 1960 was interlocutory, there saying: 'On November 22, 1960, relator appeared and non-suited the two other defendants, Warren A. Roach, d/b/a Bob Roach Texaco Service Station and L. F. Corrigan, thereby disposing of all the parties and controversies before the Court and finalizing the interlocutory default judgment of October 19, 1960.' (Emphasis ours).

The rule is so familiar as to preclude the necessity of citation of authorities to the effect that a judgment is not final, so as to be subject to appellate review unless it disposes of all of the defendants in the case. 3 Tex.Jur.2d Sec. 86, p. 350. Our Supreme Court in Foster v. Bourgeois, 113 Tex. 489, 259 S.W. 917, held that the term 'final judgment' used in a prior statute regulating time to appeal and still used in statutes regulating time to sue out writ of error is the main judgment in the case that completely disposes of both parties and subject matter.

Any doubt which might remain concerning the finality of the judgment is set at rest by Chief Justice Calvert in the Mandamus proceedings before the Supreme Court in McEwen v. Harrison et al., 345 S.W.2d 706 wherein he says:

'Texaco failed to appear or answer, and on October 19, 1960 Judge Thornton, after hearing evidence as to the extent of relator's injuries, rendered a default judgment against Texaco. * * * On November 22, 1960 relator non-suited the other two defendants and the default judgment against Texaco thereupon became final.' (Emphasis ours).

Respondent's motion to dismiss in overruled.

We now turn to the consideration...