56 S.W.2d 474 | Tex. App. | 1933
Frank Jecker, defendant in error, brought this suit in the county court of Refugio county, Tex., against the Nueces Hardware Implement Company, plaintiff in error, to recover a certain sum of money. The petition, the citation, and the sheriff's return described the plaintiff in error as Nueces Hardware Company. On call day a default judgment was entered against the Nueces Hardware Company. The plaintiff in error, on the same day and shortly after default judgment was taken, filed a motion to set aside judgment by default; the motion was afterwards amended. Defendant in error replied to said motion, and a hearing was had. The trial court sustained exception to motion to set aside default judgment on the ground that the motion was not properly verified. Plaintiff in error thereupon asked leave to amend, which was refused, an exception was taken, and said motion was then overruled.
Defendant in error then presented to the court his motion to reform the default judgment by rendering judgment against Nueces Hardware Implement Company, and the court, after hearing evidence, found, among other things, that the Nueces Hardware Implement Company is a private corporation, organized and existing under and by virtue of the laws of the state of Texas, and is now engaged in business and transacting the same under the name of Nueces Hardware Company, and that, by filing motion to set aside said default judgment, the Nueces Hardware Implement Company had entered its appearance for all purposes, and the court then reformed the judgment to read against the Nueces Hardware Implement Company.
The most serious question presented to us in this case is, Will a judgment by default be permitted to stand against the Nueces Hardware Implement Company, where said corporation is described in the petition, in the citation and in the sheriff's return, as the Nueces Hardware Company, and where said matter is called to the attention of the trial court by motion filed on the same day said default judgment was taken?
This question is almost the exact question passed upon in the case of Mecca Fire Ins. Co. v. Campbell (Tex.Civ.App.)
We feel that this is a correct statement of the law on this subject, and, when applied to the present case, requires the reversal of this judgment
At the time the default judgment was rendered in the present case, there was no pleading upon which the court could base a finding that the Nueces Hardware Company and the Nueces Hardware Implement Company were one and the same corporation, and that both names were used indifferently by said corporation.
What allegations were made and what proof was heard on the motion to set aside this judgment could not be used to supply the lack of allegation in the petition at the time default judgment was granted. At the time default judgment was taken, there was nothing in the petition or the citation to put the Nueces Hardware Implement Company on notice that defendant in error would contend that it was known by the name of Nueces Hardware Company.
Revised Statutes 1925, art. 2022, states, as one of the requisites of a citation, that it shall give the names of all the parties to the suit. The statutory requirements with reference to a citation are uniformly held to be mandatory, and, unless complied with, it is insufficient to support a judgment by default. Where the name of the defendant is misstated in the face of the citation, a judgment by default based thereon must be reversed. See *476
Beck v. Nelson (Tex.Civ.App.)
Defendant in error cites the case of Abilene Ind. Telephone
Telegraph Co. v. Williams,
The fact that the present case is a writ of error from the original judgment and not a collateral attack on same is sufficient to distinguish this case from the Abilene Case.
Contention is made by plaintiff in error that a legal service of citation was not shown in this case. As this question will not arise hereafter, plaintiff in error having entered its appearance herein by prosecuting this appeal, and in view of the fact that we are reversing and remanding the judgment herein, we have not deemed it necessary to discuss this proposition.
For the error pointed out, the judgment of the lower court is reversed, and the cause remanded.