Hable v. Owens

WALTHALL, J. This suit was brought by appellee, George A. Owens, against E. W. Hable, W. A. V. .Cash, and Rupert Harkrider, alleging that theretofore appellee entered into a contract with tile city of Abilene to pave Sayles boulevard, a street in said city, adjacent to certain lots described in said city, and that tbe city passed an ordinance fixing a lien upon said property to secure tbe payment of the cost of the pavement and had issued its certificate of special assessment for tbe improvement of tbe street adjacent to said property in the sum of $454.87; that said certificate was made payable in six equal installments, one due 10 days after tbe completion of pavement on the 23d day of March, 1923, and one due on'e year each thereafter for five years, tbe unpaid amounts bearing interest and providing for tbe payment of attorney fees; and further providing that a failure to pay any installment when due, all of the certificate may become due at tbe option of tbe bolder; and further alleging that 'Cash and Harkrider conveyed said property to Hable, who bad assumed' to pay the amounts as they became due on tbe certificate. The petition alleged that by reason of tbe facts stated defendant owed tbe amount sued for and that appellee bad a lien upon the property, and asked its foreclosure. Tbe record shows tbe suit to have been filed April 19, 1923. Judgment by default was entered on January 8, .1924, against all of tbe parties defendant; th.e judgment reciting that they were duly cited but made default, and that tbe matters of fact and law were submitted to tbe court without a jury, and that after bearing tbe evidence and argument tbe court was of tbe opinion that tbe plaintiff (appellee here) should recover, and so. entered judgment for the amount of tbe certificate and tbe foreclosing said lien on tbe property. Before tbe adjournment of the term of ‘ tbe court, Hable filed a motion to set tbe judgment aside and grant him a new trial, which tbe court overruled, and Hable excepted and gave notice of appeal. * Opinion. There is no statement of facts found in tbe record. While tbe judgment recites that “tbe defendants and each of them, though duly and legally cited in tbe manner and, for tbe length of time, came not, but wholly made default, the matters of fact as well as *132 law were submitted to tbe court without a jury, who, after bearing tbe pleadings, eviden.ce and the argument, is of tbe opinion that tbe plaintiff should recover,” and so entered judgment in the sum of $422 in favor of ap-pellee and against all of tbe defendants, and foreclosed tbe paving lien on tbe property described, tbe proceedings bad on tbe trial do not otherwise show service of citation,, waiver, or appearance of any of tbe defendants. Article 2109, Vernon’s Sayles’ Texas Civil Statutes, prescribes that tbe transcript, except as provided, shall contain a full and correct copy of all tbe proceedings had in tbe case. Article 2110, Vernon’s Sayles’ Texas Civil Statutes, provides that, if tbe pleadings or judgment show an appearance of defendant, in person or by attorney, tbe citation and return shall not be copied into tbe transcript. It would seem to follow that where tbe judgment affirmatively shows a want of appearance, tbe citation and return should appear in tbe transcript as a jurisdictional fact, where not waived. Tbe judgment shows tbe parties defendant did not appear, but tbe record does not show an agreement to omit the copying of thé citation and return in tbe transcript, as may be done, with the approval of tbe court. In the condition of tbe record on appeal, as above indicated, it fails to show that tbe trial court had jurisdiction over tbe person of tbe defendants. Recital of service in the judgment is not sufficient to show jurisdiction. Steger v. May (Tex. Civ. App.) 202 S. W. 989; Palomas L. & C. Co. v. Good (Tex. Civ. App.) 184 S. W. 805; Bonner Oil Co. v. Gaines (Tex. Civ. App.) 179 S. W. 686; McMickle v. Texarkana Nat. Bank, 4 Tex. Civ. App. 210, 23 S. W. 428; Daugherty v. Powell (Tex. Civ. App.) 139 S. W. 625. Eor reasons stated, tbe case must be reversed and remanded. Reversed and remanded.