Western Union Telegraph Co. v. Skinner

• Decision Date: 27 April 1910
• Citation: 128 S.W. 715
• Parties: WESTERN UNION TELEGRAPH CO. v. SKINNER.
• Court: Texas Court of Appeals

128 S.W. 715

WESTERN UNION TELEGRAPH CO. v. SKINNER.

Court of Civil Appeals of Texas.

April 27, 1910.

Rehearing Denied May 25, 1910.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by Rachel A. Skinner against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

N. L. Lindsley, D. McNeill Turner, Webb & Goeth, and George H. Fearons, for appellant. G. R. Scott & Pope and H. R. Sutherland, for appellee.

FLY, J.

Appellee sued appellant to recover damages alleged to have accrued by reason of the negligent failure of appellant to promptly transmit and deliver to appellee a message sent to her informing her of the death of her daughter. The suit was filed on November 19, 1908, and on December 1, 1908, which was appearance day for the district court of Nueces county, about 11 o'clock in the forenoon, no answer having been filed, judgment by default was taken by appellee against appellant, and at 2:17 o'clock in the afternoon of the same day an answer was filed by appellant. After the answer had been filed, evidence was heard by the district judge, counsel for appellant not being notified of the fact that testimony would be heard, and the court, after hearing the testimony offered by appellee, rendered judgment for appellee for the sum of $5,000, the full sum of actual damages claimed by appellee. Appellant filed a motion and an amended motion for new trial. The motion was overruled, and appellant has perfected this appeal.

The statement of facts shows that on August 6, 1908, Claudia H. Thomas, a daughter of appellee, died in Humble, Tex., and a telegram signed E. Thomas was, on same day, sent to appellee at Corpus Christi, in terms as follows: "Claudia H. Thomas died at twelve thirty today." The message was received at the office of appellant in Corpus Christi, Tex., at 3:33 p. m. on August 6th, and was delivered to appellee on August 7th, after the funeral of her daughter.

It is provided in the statutes that the second day of each term of the district or county court is appearance day, or as soon thereafter as may be practicable, to call, in their order, all the cases on the docket which are returnable to such term, and upon such call, or at any time after appearance day, the plaintiff may take judgment by default against any defendant who has been duly served with process, and who has not previously filed an answer. Rev. St. 1895, arts. 1280, 1281, 1282. In a succeeding article provision is made for the assessment of damages in causes of action where the claims are liquidated and where unliquidated; requirement being made for the hearing of evidence on unliquidated claims. The court is authorized to assess the damages, unless the defendant shall demand a trial by jury. Articles 1284, 1285.

The effect of the interlocutory judgment by default was to deprive appellant of the privilege of filing an answer, and he would be entitled to no privilege thereafter except to demand a jury for a trial of the facts as to the damages. Boles v. Linthicum, 48 Tex. 220; Alliance Milling Co. v. Eaton, 23 S. W. 455.

There is no question as to appellant having been duly served, and that the appearance docket was regularly called on the second day of the term, and when this case was reached and called judgment by default was duly taken; no answer being on file at that time. The judgment was properly rendered under the statute, and the subsequent filing of an answer did not affect the validity of the judgment. Appellant had no right to file an answer when it did, and could gain no advantage by it. It had no right at that time except to demand a trial by jury as to the amount of damages. That right it did not exercise.

In article 1263 it is provided that, when a defendant has been personally served at least 10 days before the first day of the term to which the case is returnable, his answer shall be filed in county and district courts on or before the second day of the term and before the call of the appearance docket on said second day. This is the law as amended by the act of 1893. Prior to that time the fifth day of the return term was appearance day, and the Supreme Court in the case of Railway v. Scott, 66 Tex. 565, 1 S. W. 663, construed article 1263, as it then read, in connection with articles 1280, 1281, and 1282, and called attention to an apparent conflict between the first-named article and those last mentioned, and held: "In the opinion of the court there is but one construction by which this seeming conflict in the articles quoted from the Revised Statutes can be reconciled, and that is to hold that if, upon the call of the appearance docket on the fifth day, no answer is filed, and the defendant does not ask further time, a judgment by default should be rendered against him; but, if the defendant be present in person or by attorney and ask the remainder of the day to answer, it should be allowed him." Even under that construction of the former statute appellant was not entitled to the whole of the appearance day in which to answer because it was not present when the appearance docket was called and did not ask for further time. But all seeming conflict between article 1263 and the others named has been removed by the amendment which, unlike the former law, does not give the whole of the appearance day in which to file an answer, but requires that it be filed "on or before the second day of the return term, and before the call of the appearance docket on said second day." The call of the...