McCaulley v. Western Nat. Bank

BUCK, J. The Western National Bank of Ft. Worth, Tex., brought suit on September 29, 1913, in the Forty-Eighth district court of Tarrant county, Tex., against R. L. Mc-Caulley, W. T. Trammell, E. Q. Daniel, and J. T. Haley, on a promissory note. Citation issued to Nolan county, Tex., on September 30, 1913. This citation named the plaintiff in the suit as the “Western National Bank,” omitting “of Ft. Worth, Tex.,” and omitting the names of the defendants, and the signature of the district clerk being typewritten and the space left blank, so that the typewritten signature of the clerk was the only signature subscribed to said citation. Thereafter, on January 19, 1914, an alias citation issued again to Nolan county, Tex., addressed to R. L. MeCaulley, W. T. Trammell, and E. Q. Daniel. By its terms the parties defendant were commanded “to appear before the district court of Tarrant county, Tex., Forty-Eighth district, at the next regular term thereof to be held at the courthouse in the city of Ft. Worth on the first Monday in February, A. D. 1914, the same being the 2d day of said month.” The officer’s return on this writ indicates service had upon E. Q. Daniel January 24, 1914, upon R. U. McCaulley January 26, 1914, and upon W. T. Tram-mell January 28, 1914. The defendant J., T. Haley was served at Harris in Sullivan county, Mo., with nonresident notice on January 27, 1914; said notice being issued December 31, 1913. On February 5th, the cause was transferred by the judge of the Forty-Eighth judicial district of Tarrant county, Tex., to the Sixty-Seventh judicial district court, Tar-rant county, Tex., and on March 3, 1914, in the latter court a judgment by default was rendered in favor of the Western National Bank of Ft. Worth, Tex., against the four defendants named, jointly and severally, for $1,553.10, principal, interest, and attorney’s fees, from which judgment defendants appealed by writ of error;- the petition and bond in error being filed in said court April 8, 1914. [1] In their first assignment of error the plaintiffs in error complain that the first citation issued September 30, 1913, was fatally defective, in that it did not state the name of the plaintiff correctly and did not state the names of the defendants at all; and in their second assignment they allege error because said citation did not state the names of the defendants; and in their third assignment they allege error because said citation did not state the correct name of the plaintiff.' We believe these assignments are well taken and should be sustained. Article 1852, Revised Statutes, 1911; Heath v. Fraley, 50 Tex. 211; Higgins v. Shepard, 48 Tex. Civ. App. 365, 107 S. W. 79; Delaware Western Construction Co. v. F. & M. Nat. Bank of Gilmer, 33 Tex. Civ. App. 658, 77 S. W. 628; So. Pac. Co. v. Block Bros., 84 Tex. 21, 19 S. W. 300; So. Pac. Co. v. Burns, 23 S. W. 288; Bickford v. Refugio Land & Irri. Co., 143 S. W. 1189. In Delaware Co. v. F. & M. Nat. Bank, supra, the following language is used: “The first question presented is: Will a citation which does not comply with the statute, in that it does not state the names of the parties to the suit, support a judgment by default? It has been repeatedly held that such a citation is fatally defective, and will not authorize a judgment by default” — citing a number of cases. In the So. Pac. Company Cases, supra, it was held that, where the petition named the defendant as the “So. Pac. Railway Company,” and the citation was addressed to the company as so named, such citation did not state the name of the “So. Pac. Company”; “the So. Pacific Railway Company and the So. Pacific Company cannot be regarded as identical; the names indicate different and distinct entities.” While in these cases the rule applied with respect to the defendant, we see no reason why the same rule is not applicable in the case of the plaintiff; the statute requiring that the names of the parties, both plaintiff and defendant, be set forth in the writ. If the corporate name of the plaintiff was the “Western National Bank of Ft. Worth, Tex.,” the phrase “of Ft. Worth, Tex.,” is a part of the corporate name and necessary to inform the defendants as to who the plaintiff is, and we do not believe that the designation of the name of the plaintiff as contained in the citation will support a judgment in favor of the “Western National Bank of Ft. Worth, Tex.” “Citations are materially defective and wholly insufficient to authorize a judgment by default, unless they contain the names of each and every defendant in the cause.” Portwood v. Wilburn, 33 Tex. 713. “If the citation is defective in that regard, and a judgment by default be rendered without any amendments of the writ, the defendant may avail himself of the invalidity of such service on him on error in the Supreme Court.” Norvell v. Garthwaite, 25 Tex. 584. “And it is necessary that a summons should recite the names of all the defendants to an action, even though a copy of the petition be served, which petition named all the defendants.” Battle v. Eddy, 31 Tex. 368. [2,3] Defendant in error urges that, although the citation of September 30, 1913, was defective, the defendants seeking to reopen the judgment based thereon must allege some defense and the nature of his defense to the cause of action, citing Kitchen v. Crawford, 13 Tex. 516; Snow v. Hawpe, 22 Tex. 168; Schleicher v. Markward, 61 Tex. 103; and other cases. In all of these cases the question of the sufficiency of the service arose under a collateral attack on the judgment, and the rule of “meritorious defense” applied; but this is a case of direct attack, and we do not believe that the cases cited are in point. The failure of the citation to give the name *1002 of the defendants in giving the style of the suit would be cured if the names of the defendants had been given correctly in the latter part of the writ. Guinan v. City of Waco, 22 Tex. Civ. App. 445, 54 S. W. 611. But in the case before us, the names of the defendants are given nowhere in the writ as defendants. After a careful examination of a largo number of authorities, we are convinced that the first citation was fatally defective and would not support the judgment rendered, and therefore we sustain the first, second, and third assignments of error. The fourth assignment complains that the citation was not signed by the clerk of the court, or his deputy, and will not therefore support a judgment by default. This presents the question whether or not a typewritten signature of the clerk is a compliance with article 2180, Vernon’s Sayles’ Tex. Civ. Stat., which provides that all writs and process “shall be dated and attested by the clerk with the seal of the court impressed thereon.” In support of this assignment plaintiffs in error cite, in addition to the article of the statute mentioned, the cases of Wimbish v. Wolford, 33 Tex. 110; Caufield v. Jones, 18 Tex. Civ. App. 721, 45 S. W. 741. In the case of Wimbish v. Wolford, supra, the writ was signed by the deputy clerk as his own act, and not as the act of his principal, the clerk, and the court held that this was insufficient, stating: “If the principal clerk does the act, it must he so done. A deputy only has authority to to do what the principal may do, and is not warranted in doing the act in any other way than as it might be done by the principal. He had authority to sign the name of the principal, verifying it as the act of the deputy by super-adding his own name. By reason of this defect in the citations, the court had not legally acquired jurisdiction over the persons of the defendants, and the judgment in law was a nullity.” In the case of Caufield v. Jones, supra, the court uses this language: “The citation which was issued by the clerk, and upon which the sheriff’s return was made, was not signed and attested by the signature of the clerk: Article 1447, Revised Statutes 1895, provides that all process shall be dated and attested by the clerk, with the seal of the court impressed thereon. This evidently means that the clerk shall sign officially process issued by him. This is one of the essential requirements to a valid citation, in order to give it an official and authentic character. No one but the clerk is authorized to issue the citation, and his official signature, together with his seal, is regarded as the evidence of his official conduct in the premises. A citation issued by an individual who is not a clerk, and one issued without such requisites, could not be regarded in law as official process.” If the determination of the question raised in this assignment was material to the disposition of thé case — that is, whether the typewritten signature of the clerk to the citation is sufficient to support a judgment— we would be loathe to determine the matter without a more thorough examination of the authorities than we have made. In the case of Bridges & Son v. Bank, 47 Tex. Civ. App. 454, 105 S. W. 1018, the court held that in an attachment suit by a corporation the typewritten signature of the corporation to the attachment bond was sufficient without showing what officer, if any, signed the same. In the case of Degginger v. Martin, 48 Wash. 1, 92 Pac. 674, the court seems to uphold the sufficiency of such typewritten signature. But we are keenly aware of the confusion, uncertainty, and opportunity for fraud that might arise in courts and in business circles if such a holding should obtain. But, so far as this question has been passed on by the courts of Texas and other jurisdictions, there seems to be a tendency to hold such signature sufficient. Herrick v. Morrill, 37 Minn. 250, 33 N. W. 849, 5 Am. St. Rep. 841; Mezchen v. More, 54 Wis. 214, 11 N. W. 534; Ligar v. So. Ry. Co., 76 Cal. 610, 18 Pac. 778; L. & N. Ry. v. Banks (Ky.) 33 S. W. 627. In view of these holdings, we would be constrained, perhaps, to overrule this assignment, if such action was necessary to a disposition of this case; but, inasmuch as other assignments will control, we will leave the subject as discussed, without adding our distinct approval of the practice. [4] For the purpose of this opinion, we will next take up the eighth assignment, which is as follows: “A citation not served 10 days before the return day thereof, but prior to such return day, can only compel the defendant to appear at the next succeeding term of court to which the same is returnable, and judgment by default based thereon, in that, or in any other court, prior to such succeeding term is error.” The citation issued January 19, 1914, was returnable to the Forty-Eighth district court on the 2d day of February, 1914, and less than 10 days elapsed between the service had on Daniel, to wit, January 24, 1914, he being the first of the defendants served, before the first day of the February term, and such service was insufficient to support judgment at the February term of the Forty-Eighth district court. The statute requires 10 days exclusive of the day of service and return day. Therefore it is evident that the service was not complete as to the February term of the Forty-Eighth district court, and we do not believe that by the transfer of the cause to the Sixty-Seventh district court on February 5, 1914, any aid to such service would obtain, but that defendants would not be required to answer, or subject themselves to a judgment by default, prior to the first day of the May term of the Forty-Eighth district court. Article 30, subd. 17, tit. 5, of the Revised Civil Statutes 1911, provides that Tarrant county shall constitute the Seventeenth, Forty-Eighth and Sixty-Seventh judicial districts, and that “the judges Of said courts may, in their discretion, transfer any suit or case, civil or criminal, from one of said courts to any other of said courts.” Therefore the Forty-Eighth district court was authorized to transfer said *1003 cause to the Sixty-Seventh district court, but such order of transfer did not in any wise abridge the rights of defendants to have until the first Monday in May to answer plaintiff’s cause of action. Therefore we hold that the eighth assignment must he sustained. Finding no merit in the fifth, sixth, and ninth assignments of error, they are hereby overruled. [5] The tenth assignment complains of the judgment as to the defendant J. T. Haley, it being claimed that he- was a nonresident of the state of Texas at the time of service. But the petition alleged that he was a resident of Nolan- county, Tex., and there is nothing in the record to disclose that such allegation is not true. Service had in another state upon a resident of this state will support a personal judgment. Martin v. Burns, 80 Tex. 677, 16 S. W. 1072. This assignment is overruled. [6] While every intendment should be presumed in support of the judgment of the trial court ordinarily, yet such presumption will not obtain in a case of judgment by default. “In order to establish the validity of a judgment by default, as in a case of any other judgment, it is essential the court should have acquired jurisdiction of the person of the defendant. A judgment entered by default against a party who has not been served with process and who has not appeared in the action is irregular and void, and due and proper service must appear upon the record before the court is authorized to render judgment by default.” Black on Judgments, vol. 1, § 83. “The rendition of judgment at a term before that fixed by statute is considered, not as a mere formal defect which may be remedied by _ an amendment in the court below, but as a radical error. Thus, the entry of final judgment at the same term with a default, when the statute provides that the former shall be entered the next term after the default, is an irregularity, although in this instance it appears that the error may be corrected on motion at a subsequent term.” Id., § 181. “On appeal from a judgment by default nothing will be presumed in its favor; the record must show affirmatively the existence of every material fact to give the court jurisdiction, and that all the proceedings were in accordance with law. It is a well-settled rule of practice that, where a judgment is taken by default against ¡i defendant in an action, the record must affirmatively show that process had been duly served the required length of time before the default was taken.” Id., § 93. On an indirect attack, it might be reasonably contended that the recitation of the judgment, to wit, that “the defendants though duly cited to appear and answer herein, came not, but wholly made default,” was sufficient to justify this court in presuming that some other service than that set forth in the record had been had on the defendants and sufficient to support the judgment. But on direct attack by appeal, as here, no presumptions will be entertained in support of a judgment by default, except as supported and affirmatively shown by the record. Therefore the correctness of the recitation of the judgment before quoted must rest upon the sufficiency vel non of the process shown in the record. ■ Because of the errors mentioned, the judgment of the trial court is reversed, and the cause remanded. Footnotes [1] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes