57 Tex. Civ. App. 349 | Tex. App. | 1909
This is a suit for damages by the appellees on account of delay and rough handling of cattle shipped from Colorado, Texas, to East St. Louis. The suit was originally
Appellant’s first assignment of error complains of the action of the trial court in not sustaining the motion of appellant to quash the return of the officer endorsed upon the citation purporting to show service upon it. The return is as follpws: “Came to hand on the 7th day of February, 1908, at 8 o’clock a: m., and executed in Grayson County, Texas, by delivery to the within named defendant in person a true copy of this citation, together with the accompanying certified copy of plaintiff’s petition, at the following times and places, to wit: Fame: Missouri, Kansas & Texas Railway Company, by service upon George B. Stoner, its local agent, in person, at Denison, in Grayson County, Texas,” giving the date and the signature of the officer. The objection is that the return does not show that service was made by delivering to Stoner, the local agent of the appellant, a true copy of the citation, with the accompanying certified copy of the petition; that the words “service upon the agent” is a conclusion of the officer, and is not the equivalent of the words, “delivery to.” If we concede that under the rule announced in Continental Insurance Co. v. Millican, 64 Texas, 46, the return of the officer on the citation in question was defective, the motion made by appellant to suppress same placed it in court for the next term, Central & M. Ry. Co. v. Morris and Crawford, 68 Texas, 55, and upon order overruling the motion it could have relied upon the correctness of its position and have declined to answer and declined to submit itself to the jurisdiction of the court at the term at which the motion was overruled. If the appellant was right in its contention that the motion to quash the return was well taken, all the advantage it could have gained would have been a postponement or continuance of the case to the next term of court. Having voluntarily answered to the merits without the answer reserving the privilege to be heard at the next term, nor asking for a postponement or continuance, but voluntarily going to trial' upon the answer so filed, the appellant submitted itself to the jurisdiction of the court, and is in no position to complain. In discussing a somewhat similar question, the court in the case of Railway v. Morris and Crawford says:
“But let it "be conceded for the sake of argument that the alias citation and service upon the alleged agent were not good. At the first term of court the plaintiff in error moved to quash the service upon' it, and its motion was overruled. The statute merely provides that if the service or citation is quashed upon motion of the defendant, he shall be deemed to have entered his appearance at the succeeding term of the court. Revised Statutes, 1243. The result of this rule is that whenever he appears and moves to quash the service, he is considered as having appeared to the merits at the next term, whether his motion be sustained or overruled. If properly overruled*351 he is in court from the time of the service. If improperly overruled, and the cause be continued, he is not prejudiced by the action of the court for the reason that the continuance is the only advantage he would- have obtained if his motion had been granted. The error in such a case is immaterial, and is not a ground for a reversal of the judgment. It is the option of a defendant who thinks he is not duly served with process either to move to set it aside or to appeal from the - judgment should one be rendered against him. There is no compulsion upon him to pursue the' former course. Should he see proper to do so it is not seen that the Legislature has infringed any of his constitutional rights by declaring in effect that his appearance to quash the writ or service shall at all events be deemed a good appearance for the next term should the cause be continued. The statute is a salutary one. It tends to the speedy disposition of causes, to the saving of costs, is conservative of the rights of the parties, and should be liberally construed and applied.”
The question here discussed, it is true, is not strictly analogous, but it is impliedly so: The effect and meaning of the discussion is that if the appellant has had his day in court, he is in no position to complain. In this instance the appellant stood upon the merits of its defense in the court below, without any intimation whatever, so far as shown by the record, that- it was not then ready and willing to proceed with the trial; and, such being the case, and voluntarily answering, the court had the power to proceed with the trial at that term.
The remaining assignment complains of the action of the trial court in allowing a witness to testify as to the usual and customary time of making cattle shipments between Colorado City and East St. Louis. The evidence shows that the witness who testified to these facts had many years experience in shipping cattle between these points over the lines of railway in question, and that he was fully qualified to testify as to the usual time required in transporting cattle between those two places. This is a different question from that decided by the Supreme Court in Houston & T. C. Ry. Co. v. Roberts, 101 Texas, 418.
We find no error in the record and the judgment is affirmed.
Affirmed.
OPINION ON REHEARING.
Hpon a further examination of the officer’s return upon the citation which is set out in the original opinion, we have concluded that it is substantially sufficient. Considered in all of its parts it in effect shows that the citation and copy of petition was delivered to Geo. E. Stoner, the agent of appellant, the party named in the citation upon whom service was directed to be made, and in these respects it is different from the return set out in the case of Continental Ins. Co. v. Millican, 64 Texas, 46.
As pointed out in the original opinion, the objection urged to the return is that it does not directly state that the copy of citation and petition was delivered to the agent Stoner in person, but merely states that it was served upon him, which it is contended is not
Holding the return sufficient, we might be relieved from the necessity of passing upon the question of waiver; but in view of the fact that the appellant claims that the question of the sufficiency of the return is controlled by Insurance Co. v. Millican, supra, we think it proper to again notice and discuss the question of waiver as passed upon in the original opinion. It is claimed by appellant in its motion for rehearing that our disposition of the principal question discussed and passed upon in the original opinion is in conflict with the views of the Supreme Court in Western C. P. & Organ Co. v. Anderson, 97 Texas, 433. This is an erroneous construction of the opinion previously handed down, and we will endeavor to point out the distinction between the two cases. In the case referred to, the Supreme Court held that the return was defective and that the trial court erred in not sustaining the motion to quash, and that thereafter the defendant was required to answer or suffer judgment
Motion for rehearing and to certify is overruled.
Motions overruled.