S. W. Hughes sued E. E. McClatchy to revive a dormant judgment against McClatchy owned by Hughes. A jury found that after the suit was filed, Hughes failed to exercise diligence to get personal service of citation on McClatchy prior to March 31, 1950. The court held the suit was barred by limitation, rendered judgment for defendant and Hughes has appealed.
The substance of appellant’s points are that the statute, Art. 5532, requires only that such a suit be “brought” within ten years after the date of the judgment; that the evidence conclusively shows the suit was filed, citation was issued and efforts were made to obtain service of citation within said ten years and, therefore, his suit was not barred. Appellant contends (1) the law does not require continuing diligence to obtain service of citation after expiration of the period of limitation; (2) that the evidence conclusively shows he exercised reasonable diligence to obtain service; (3) that appellant had no duty to have appellee cited by publication, and (4) that the court erred in excluding statements made by appellee’s father, now deceased, to appellant, as to the whereabouts of appellee.
It is undisputed that the dormant judgment sought to' be revived was rendered on November 12, 1931; that Hughes filed suit to revive it on September 24, 1941; that citation was issued on the same day; that on October 1, 1941, the district clerk of Brown County sent the citation to Mr. Hughes stating the constable had returned the citation to him, stating he had made diligent search and found that McClatchy no longer resided in Brown County; that the constable did not give the clerk any information as to McClatchy’s residence and that, if Mr. Hughes knew McClatchy’s address, said citation could be served on him wherever he was living. No other citation was applied -for nor issued until about March 31, 1950, when a second citation was issued and promptly served on McClatchy in Lubbock County on April 3, 1950.
Mr. Hughes testified that he wrote the tax assessors of Lubbock, Potter, Howard, Hale, Crosby, Dawson, Gaines, Floyd, Gray, Sterling, Hockley and Haskell Counties, asking whether appellee’s name was on their tax rolls and, if so, his address; that all who replied stated MeClatchy was not on their rolls. The first of these letters appear to have been written in 1942 and the last in 1944.
Further; with reference to the defense that the cause of action was barred because of lack of diligence in obtaining service on appellee before March, 1950, Hughes testified, in effect, that after the first citation was returned unserved, by the Brown County constable, he went to Bangs in Brown County, seeking information as to appellee’s location; that he talked to appellee’s father, who was dead at the time of the trial; that he asked him where appellee-was; that he did not learn where appellee was as a result of that conversation. That appellee’s father said he did not know where he was but thought he was somewhere in the Amarillo section. Objections to this answer was sustained and the jury instructed not to consider it. The question concerning the admissibility of this testimony will be discussed later.
Mr. Hughes testified that he and two^ other men kept constant check on the newspapers of West Texas to find the address of appellee, and others, against whom he had. judgments or claims; that he took 15 to 20 newspapers, including the two Brown-wood papers and Lubbock, Fort Worth and other daily newspapers; that he had checked them ever since 1940; that he did not have a record of writing anyone inquiring as to appellee’s whereabouts after 1944; that he kept a man checking around wherever he would go but that you could not go much during the war; that in March, 1950, he read in a newspaper of the death of appellee’s father and that said newspaper gave appellee’s address; that this was his first information of McClatchy’s address; that the newspaper stated he resided in Lubbock; that on March 28, 1950, he wrote the clerk of Brown County asking him to issue citation. Citation ,was issued March 31, 1950, and. served on appellee in Lubbock County on April 3, 1950.
Appellant testified, in substance, that he did not write any letters inquiring as to the location of appellee from July 10, 1944, until 1950; that what he did in attempting to 'locate appellee, from 1944 to 1950 was that he checked the newspapers and when he was traveling he “checked around to try to locate him.”
In support of the .jury finding that appellant failed to exercise diligence to get service of citation on appellant before March, 1950, appellee calls attention to the following evidence: Appellant alleged ap-pellee was a resident of Brown County. Appellant denied that he knew appellee formerly' lived' in Brownwood, but testified that he understood appellee formerly lived near the Bangs community, about 8' miles from Brownwood. Appellant testified that he did not know that appellee had worked in a bank in Brownwood before it failed; that he inquired around Brown-wood for appellee and could not locate him; that he did not make application for citation by publication; that he did not inquire of. any of the MeClatchy family, other than his father, as to appellee’s address. Appellant testified that he did
Appellee testified to the same effect as his wife, and further, that from 1941 up until the trial of this case, he maintained á home in Lubbock 'County, that he had a telephone in his name and he was listed in the .city directory. He testified that he was born in Brown County; that his mother and father lived south of Bangs; that he had two brothers and three sisters who lived there; that one brother still lives in Brownwood and had lived there practically all of the time; that another brother left Brown County in 1942; that his mother died in 1937; that during all the time he was gone from Brown County he frequently visited there, at least once a year and sometimes two or three times a year; that their visits were mentioned in the Brown-wood papers; that the family had a reunion each year; that on several occasions they were in Brown County at family reunions;
From the foregoing and other evidence of like import, it is evident that if appellant had a continuing duty to exercise reasonable diligence to secure service of citation on appellee until he was served, that a ques^tion of fact as to whether -he exercised such diligence is raised by the evidence .mentioned. In Austin, Banking Commissioner, v. Proctor, Tex.Civ.App.,
The .following was quoted from the Proctor case in an opinion adopted by the Supreme Court, First State Bank & Trust Co. of Rio Grande City, et al. v. Ramirez, et al.,
Hannaman v. Gordon, Tex.Com.App.,
The requirements of Workmen’s Compensation statutes that claimant “bring suit” and “institute and prosecute” a suit have been held' to mean the same thing. Maryland Casualty Co. v. Jones,
In Long-Bell Lumber Co. v. Bynum,
The Court of Civil Appeals, Bynum v. Long-Bell Lumber Co., 5 Cir.,
In determining whether there is any evidence to support a jury finding, every intendment must be indulged in its favor and only testimony which tends to support such finding may be considered. We think the evidence raised a question of fact as to the exercise of diligence by appellant to secure the service of citation on appellee after it had been returned unexe-cuted by the officers o-f Brown and Coleman Counties in October, 1941. See Cochran v. Wool Growers Central Storage Co.,
Appellant contends the judgment should be reversed because the court excluded Hughes’ testimony as to what appellee’s father said when Hughes inquired as to ap-pellee’s whereabouts, after his unsuccessful efforts in 1941 to get service on appellee in Brown and Coleman Counties. Hughes testified he went to the father’s residence and talked to him. Appellee, then elicited the information that appellee’s father was dead, whereupon, appellee objected to any statement made by appellee’s father, ap--parently upon the ground that it constituted a violation of the so-called “Dead Man’s
“Q. You said you talked to his father; did you make any inquiry of his father as to his whereabouts? A. I did.
“Q. Did his father tell you where 'he was? . A. He said—
• “Appellee’s Counsel: I ask for the court’s ruling.
“Court: I sustain the objection.
“Q. I asked if you made inquiry of Mr.' McClátchy’s father a's to the whereabouts of E. E. McClatchy? A. I did.
“Q. Did you obtain any information?
“Appellee’s Counsel: We object to that; Mr. McClatchy is now dead and cannot refute any statement he might make; he has picked out the only dead one of the Mc-Clatchy family to testify about.
“Court: Go ahead and ask the question and I will pass on it. * * * * * *
“Q. Mr. Hughes, did you obtain any information from his father with reference to the whereabouts of E. E. McClatchy? A. I did not, except — do you want me to state—
“Q. If you obtained any information, go ahead. A. He didn’t know, but he thought he was in Amarillo, in that section somewhere.”
(The court then sustained appellee’s objection and sustained his motion to instruct the jury n'ot to consider said last statement hut stated, in effect, that the court was excluding only what Mr, McClatchy said but was not excluding the testimony that Hughes made inquiry but did not obtain from appellee’s father any information as to appellee’s whereabouts).
The excluded testimony, we think, was not subject to the objection made. Although -appellee is an heir, judgment could not have been rendered against him “as such.” See McKibban et al. v. Scott et al.,
The judgment is affirmed.