252 S.W. 860 | Tex. App. | 1923
The defendant in error sued the plaintiffs in error, Mays Mays, a partnership, and the individual members thereof, to recover the sum of $2,000, it being alleged that the partnership was composed of Charles, Will, John, and Howard Mays. The partnership and the individual members Charles, Will, and John Mays filed answers by their attorneys. No answer by Howard Mays is found in the record, nor does any service of citation upon him or waiver thereof appear. The judgment recites due service upon him. Upon trial personal judgment for $1,000, with interest, was rendered against the partnership and each of the individual members. Upon trial the defendants failed to appear either in person or by their attorneys. Motion for new trial was filed by plaintiffs in error, setting up that they had a meritorious defense, and the reasons for their failure to appear at the trial. Evidence in support of the motion was heard by the court, and the motion overruled. The original motion was filed 8 days after the judgment was rendered.
Error is assigned to the overruling of the motion. The court heard evidence in support of the reasons assigned for the failure of counsel for plaintiffs in error to appear. The issue upon this phase of the case related to an alleged agreement by one of the counsel for plaintiffs in error with counsel for defendant in error. Such agreement was denied, and the court's adverse finding upon the issue controls. Lawther Grain Co. v. Winniford (Tex.Com.App.)
The parties who answered filed a sworn denial of partnership. Error is assigned to the admission of certain evidence offered by *861 defendants in error to prove partnership, and it is also urged that such evidence had no probative force; therefore the adverse finding upon the partnership issue is unsupported by the evidence. No such error was assigned in the motion for new trial and it cannot be raised for the first time upon appeal.
For the reasons indicated the various assignments are overruled, but the rendition of the personal judgment against Howard Mays was not authorized, because the record discloses neither service of citation upon him, waiver, or appearance by answer filed or otherwise. Articles 1863 and 2006, R.S.
Upon appeal from a default judgment jurisdiction over the person of the defendant must be shown by the record independent of the recital in the judgment. This error in rendering personal judgment against Howard Mays is fundamental, and will be corrected, though not assigned. Glasscock v. Barnard,
Reversed and remanded.
