TXXN, Inc. v. D/FW Steel Co.
| Decision Date | 29 April 1982 |
| Docket Number | No. 2-81-012-CV,2-81-012-CV |
| Citation | 632 S.W.2d 706 |
| Parties | TXXN, INC., Appellant, v. D/FW STEEL COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Geary, Stahl & Spencer and David E. Thomas, Dallas, for appellants.
Michener, Swindle, Whitaker, Pratt & Mercer and Mack Ed Swindle, Ragan S. Tate, Fort Worth, for appellees.
Before MASSEY, C. J., and SPURLOCK and JORDAN, JJ.
This appeal arises from a default judgment rendered against appellant TXXN, Inc.
D/FW Steel Company, appellee, filed suit on a sworn account against appellant, a corporation, seeking damages of $8,905.68 plus costs and attorney's fees. Service of process was had pursuant to Art. 2.11, Texas Business Corporation Act which provides in pertinent part:
A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of the corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.
B. Whenever a corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served.... In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of the copies thereof to be forwarded by registered mail, addressed to the corporation at its registered office.
The court below granted appellee's motion for default judgment based upon appellant's failure to appear or answer within the time required by law.
We affirm.
Appellant attacks the default judgment rendered below on the ground that although service was made upon the Secretary of State as appellant's agent for service, that no actual notice was given it and that it knew nothing of the suit until after rendition of judgment.
By point of error, appellant challenges the sufficiency of service, charging that appellee failed to strictly comply with the statutory directives of Art. 2.11, supra. We note that the general presumptions of due service of citation in support of a default judgment will not be indulged and that the record must show strict compliance with the provided manner and mode of service of process. Whitney v. L & L Realty Corporation, 500 S.W.2d 94 (Tex.1973); Texas Inspection Serv., Inc. v. Melville, 616 S.W.2d 253 (Tex.Civ.App.-Houston (1st Dist.) 1981). In passing on the question of strict compliance with the statute in a case such as this one, the reviewing court must look to the face of the record. If the record contains pleadings which if true would require the defendant to answer, and if it also contains proof that defendant was served in the required manner, then the court may uphold the default judgment. See Alpha Guard, Incorporated v. Callahan Chemical Company, 568 S.W.2d 448 (Tex.Civ.App.-Austin 1978, no writ); also Charles Cohen Inc. v. Adams, 516 S.W.2d 464 (Tex.Civ.App.-Tyler 1974, no writ).
We hold that the record before us satisfies these requirements. In its petition, appellee alleged that appellant's registered agent for service of process was Preston E. Perdue and that it had attempted to serve Perdue at appellant's registered office, its last known mailing address for service of process being 204 Carillon Tower East, 13601 Preston Road at LBJ, Dallas, Dallas County, Texas. The pleadings further alleged that Perdue could not be found at that address despite a reasonably diligent search, and that service should therefore be had upon the Secretary of State as agent for service of process as provided for in Art. 2.11. An unserved citation of service returned by the constable bears out the allegations made in the petition, while another citation of service, served thereafter, shows that it was properly made upon the Secretary of State as agent for service of process. A certificate of the Secretary of State shows that a copy of the citation was forwarded by registered mail to the address of the appellant's registered office, but was returned...
To continue reading
Request your trial
-
American Steel Bldg. Co., Inc. v. Davidson & Richardson Const. Co.
...receive the material, but only that it is served and mailed according to the statutory requirements. See TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 708 (Tex.App.1982) (statute satisfied despite the fact that receipt was returned "Not Deliverable As Addressed, Unable To Forward"). Thus, a......
-
Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind
...construction, neither of which apply here. The first is when a company breaches a duty to maintain a registered office. In Txxn, Inc. v. D/FW Steel Co., 632 S.W.2d 706 (Tex.App.--Ft. Worth 1982, no writ), plaintiff had sought to serve defendant pursuant to the Texas Business Corporation Act......
-
Tex. Underground Utilities, Inc. v. Sw. Bell Tel. Co.
... ... notice of pending suits"); TXXN Inc. v. D/FW Steel ... Co. , 632 S.W.2d 706, 709 (Tex. App.-Fort Worth 1982, no ... ...
-
Tankard-Smith, Inc. General Contractors v. Thursby
...appearing "on the face of the record" and we are not authorized to consider it, even in the absence of a motion to strike. TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706 (Tex.App.--Fort Worth 1982, no writ). Relying upon Fields v. Cotten, 383 S.W.2d 84 (Tex.Civ.App.--Beaumont 1964, no writ) a......