Employer's Reinsurance Corp. v. Brock , 1934 Tex. App. LEXIS 847 ( 1934 )

LESLIE, Justice.

This suit arises under the Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended), and from a lump-sum judgment in favor of the employee Joe Brock, the appeal is prosecuted by the insurance company. The facts material to the disposition of the appeal will be stated in the course of the opinion.

The suit was filed March 21, 1933, and the defendant was alleged to he “a corporation operating under the laws of the State of Missouri, and engaged in writing Workmen’s Compensation insurance in the State of Texas under and hy virtue of a permit issued to it as provided hy the laws of said State and •maintaining an office in the town of Houston, Harris County, Texas, with John R. Young in charge thereof as tile duly authorized attorney for service of legal process in Texas upon (whom) service of process may be had in this cause.” Citation issued to the sheriff of Harris county, commanding him to summon the “Employer’s Reinsurance Corporation, a private corporation” to appear before the district court of Haskell county at the next regular term, beginning April 17, 1933. Neither the name of the agent, nor his character as such, was recited in the citation proper, hut attached to the citation was a certified copy of the plaintiff’s original petition, and reference to the same was made for the nature of the plaintiff’s demand. The citation further read “and you will deliver to said defendant Employer’s Reinsurance Corporation, a corpora-. tion, in person a true copy of this citation, together with accompanying certified copy of the plaintiff’s original petition.”

The sheriff’s original returns indicated that the citation was served on the defendant in the following manner: “Received this writ on the 30th day of March, A. D. 1933, at 2 o’clock P. M., and executed the same in Houston, Harris County, Texas, on the 31st day of March, A. D. 1933, at 3:50 o’clock P. M., by summoning the Employer’s Reinsurance Corporation, a corporation, the within named defendant, hy delivering John R. Young, agent of the said Employer’s Reinsurance Corporation in person a true copy of this writ, together with certified copy of plaintiff’s original petition.”

The first term of court after the filing of the suit convened April 17, 1933. No answer was filed by the defendant, and on April 22, 1933, the court granted plaintiff a judgment, reciting the appearance of the plaintiff and the default of the defendant. The plaintiff introduced testimony in support of his cause of action, and the statement of facts is brought up on this appeal. On April 29, 1933, the appellant filed a motion seeking to have the judgment set aside and be granted a trial on the merits of the case. On May 9, 1933, the appellant filed an amended motion to set the judgment aside, and a hearing on that motion was had on May 19, 1933, at which time the court overruled the same. After the judgment by default was granted, and prior to the -overruling of the motion to set same aside, the court permitted the plaintiff to have the sheriff of Harris county amend his original return on the citation, and as amended it reads:

“Sheriff’s Return (Amended)

“Received this writ on the 30th day of March A. D. 1933, at 2 o’clock P. M., and executed same in Houston, Harris County, Texas, on the 31st day of March, A. D. 1983, at 3:50 o’clock P. M., by summoning the Employer’s Reinsurance Corporation, a corporation, the within named defendant by delivering to John R. Young, authorized attorney for service and local agent of said Employer’s Reinsurance Corporation, in person a true copy of this writ together with certified copy of the plaintiff’s original petition.”

When the amended motion to set aside the judgment was before the court for consideration, the amended return was called to his attention. Other matters were brought out at the hearing on the motion, but they are unimportant and immaterial to the question before us. The service and return of process on the defendant is under attack. The question involves the validity of the judgment on the ground that the trial court was without jurisdiction to render the same, in that at the time of its rendition, no proof was offered respecting the agency of the said John R. Young, and that the judgment was without support in the pleadings, citation, sheriff’s return, or the record. The proposition will now be considered.

The defendant being a foreign corporation, service could only be had upon it under and by virtue of article 2031, R. S. 1925, which reads as follows: “In suits against a foreign corporation, joint stock company or association, or acting corporation or association, process may be served on the president, vice president, secretary, treasurer, or general manager, and in any cause of action arising within this State, process may also be served upon any local or traveling agent, or traveling salesmen of such corporation, joint stock company or association, or acting corporation or association in this State.”

As above stated, the sheriff’s return on the citation was amended prior to the hearing on the motion to set the judgment aside. The right to so amend is not challenged, and such seems to be the undoubted right of the interested litigant or the officer. Article 2044, R. S. 1925; El Paso & S. W. R. Co. v. Kelly (Tex. Civ. App.) 83 S. W. 855, 858; Id., 99 Tex. 87, 87 S. W. 660; Delaware Ins. Co. v. Hutto (Tex. Civ. App.) 159 S. W. 73; Canadian & American Mortg. & Trust Co. v. Kyser, 7 Tex. Civ. App. 475, 27 S. W. 289; Wilson v. Wagner Supply Co. (Tex. Civ. App.) 260 S. W. 932; 21 R. C. L. p. 1329, § 277 et seq. The citation is regular and reflects the essential elements of the petition. The return, as amended, meets in all respects the requirements of the law showing legal service on the defendant through its “local agent.” As amended, the return specifically recites that service was had on the defendant through its “local agent John R. Young.” In view of the amended return it was unnecessary for the plaintiff to introduce proof of the agency of said Young. The amended return related hack to the date of the original. Hence, there is no merit in the contention that the plaintiff failed to introduce proof that Young was, in fact, the defendant’s local agent. The plaintiff was under no legal duty to do so. The sheriff, in the discharge of his duty, sought out said Young, identified him as the defendant’s local agent, and officially certified to that fact in his return. Under this state of the record, the judgment by default was warranted without further showing or proof of agency on the part of the plaintiff. Galveston, H. & S. A. Ry. Co. v. Gage, 63 Tex. 568; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908, 909; Houston & T. O. R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808; Illinois Steel Co. v. San Antonio & G. S. R. Co. (C. C.) 67 F. 561; Missouri Pacific Ry. Co. v. Wise, 3 Willson, Civ. Cas. Ct. App. p. 461, § 386; El Paso & S. W. R. Co. v. Kelly, supra; Grayce Oil Co. v. Varner (Tex. Civ. App.) 260 S. W. 883; Delaware Ins. Co. v. Hutto, supra; First National Bank v. Latham, 37 Okl. 286, 132 P. 891.

The right to have the sheriff amend his return being unquestioned, and that return disclosing service on the defendant through its “local agent” as prescribed by the statute, the burden of disproving that agency fell on the defendant who was seeking to overthrow the service. From the above authorities this clearly appears to be the rule of law under such circumstances. In the case of El Paso & S. W. R. Co. v. Kelly, supra, “Neither the local agent nor the general manager” of the corporation was named in the plaintiff’s petition, nor citation. The sheriff’s return showed service on each of the defendants’ said agents. The sufficiency of the citation and service was there questioned, and in disposing of the point the court said: “While it is a general rule that the return on a citation, made by an officer competent to serve the writ, of the fact and mode of service, if in due form, is ordinarily conclusive upon the parties to the record, yet it seems that in this state, in a suit against a corporation, when its local agent or other officer upon whom service may be had is not named in the citation, the sheriff’s return showing service upon such agent or officer is not conclusive of the fact that he was such agent or officer, hut such fact may he put in issue (G., H. & S. A. Ry. Co. v. Gage, 63 Tex. 568); and that, if judgment by default has been taken against a corporation, it can, either by motion or original suit, have the judgment set aside by proving that the person cited was not its agent or officer authorized by law upon whom service can be had. H. & T. C. Ry. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808.” (Italics ours.)

In the case of Galveston, H. & S. A. Ry. Co. v. Gage, supra, neither the petition nor the citation stated that there was a local agent of the corporation upon whom service could be had, and the sufficiency of the service was questioned upon these grounds, as well as the insufficiency of the sheriff’s returns. The sheriff’s return stated that the process was served by delivering “a true copy of this citation to F. Voelker in person, the local agent representing the within named defendant * * * Railroad Company, in the county of Uvalde.” Our Supreme Court held this to meet the requirements of law. It quoted approvingly from the Mineral Point R. Co. v. Keep, 22 Ill. 16, 74 Am. Dec. 124, and part of that excerpt is as follows: “Our statute authorizing service of process on an agent or conductor is an innovation upon the ancient practice, and no greater force and effect should be given to it than is absolutely necessary. * * * We think, therefore, that the fact of agency could have been put in issue by plea in abatement of the writ, the defendant appearing for that purpose only. By such practice no injustice can be done.”

Our Supreme Court followed this with a statement that, “This rule will afford protection to all,” and then proceeding further held: “In the case before us, however, the defendant did appear, and for the purpose of abating the writ, a copy of which was left at its office in San Antonio, filed a sworn plea; but it filed, no such plea in reference to the fact of agency or not of the person on whom the writ was served in the county in which the suit was drought; but sought simply to quash the writ and service, upon purely technical grounds, without in any manner denying that the person served was its local agent in the county of Uvalde at the time the writ was served. We are of the opinion that this was not the proper manner for raising the question of the sufficiency of the service, and that the court did not err in overruling the motion.” (Italics ours.)

In this, and the other authorities cited, it will he observed that the return of the officer stating that the writ was delivered to the local agent of the defendant corporation, etc., was held to constitute a prima facie showing of service upon it, and, therefore, sufficient in law.

This line of authorities is of interest, and has a material bearing upon another phase of the case. While the defendant appeared at the same term of court at which the judgment was rendered and filed its amended motion for a new trial, and to set aside the service by reason of defects in the sheriff’s return, yet the only attack which is made upon same is:

(1) That “the trial court erred in rendering judgment by default against this defendant for the reason * ⅜ ⅜ neither said petition, the citation issued by the clerk thereunder, the returns of the officer thereon, nor the record in this case shows John R. Young the person upon whom service was attempted to be had, was such officer or agent of such foreign corporation, as the statutes of this State require service to be had upon. ⅜ ⅜ ⅜ ” And

(2) That “the trial court erred in rendering judgment by default against the defendant for the reason * * ⅜ there being no proof that John R. Young the person upon whom service of citation was attempted to be had in this case was such officer or agent of such corporation as the statutes of this State require service to be had upon. ⅜ ⅜ ⅜ ”

It will be observed that these allegations nowhere deny that John R. Young was the local agent of the defendant at the time and place the officer delivered him the process. The form of the return is criticized, hut the foot of agency is not denied. The amended return met the criticism entirely. Evidently the fact of agency was never put in issue by the plea or motion. Further, the motion to set the judgment aside and for a new trial, written in a spirit of frankness, is hardly to be interpreted as denying the agency of John R. Young, or that the defendant did not receive through him the citation and certified copy of the petition evidenced by the returns.

In support of the conclusions herein, we desire to call particular attention to the opinion in Missouri Pacific Ry. Co. v. Wise, above cited. It is there held: “The citation commanded service thereof to be made upon the defendant, the Missouri Pacific Railway Company, and in other respects complied substantially with the requirements of the statute. It is not essential, though it is proper, and the better practice, in a citation against an incorporated company, to name therein the local agent upon which the same is to be served. An omission to do so, as there was in this case, does not invalidate the citation. Ry. Co. v. Gage, 63 Tex. 568; [International & G. N. R. Co. v. Sauls] 2 Willson, Civ. Cas. Ct. App. § 242. The return upon the citation shows that it was served upon A. E. Davis, the local agent of defendant company, by delivering to him in person a true copy of the writ, stating the date of such service. This shows a legal service.” This was quoted with approval by Judge Maxey in Illinois Steel Co. v. San Antonio & G. S. Ry. Co., supra.

From the foregoing we conclude that the service and officer’s return of process were in law sufficient, and proposition 1 and assignments 1, 2, and 3 are overruled.

Before proceeding to a consideration of the various other questions raised by the appellant’s brief, we desire to state at this point that a careful examination has been made of its brief and we fail to find that any assignment is presented therein to this court complaining of the action of the trial court in overruling the motion to set aside the judgment by default and grant the defendant a new trial. Under the authority of Gatlin v. Dibrell, supra, this would preclude the appellant from presenting any such question on this appeal and disposes óf the same in favor of the appellee. In that case, similar to the instant one, and considering a like question, the Supreme Court held: “If there was error at all, it was in the ruling of the court denying the motion to set aside the judgment, which is not complained of. If the action of the court in overruling (the motion) was complained of here, so as to require our decision upon it, we are clearly of opinion that the evidence offered to prove the falsity of the ■return was wholly insufficient.”

If we are mistaken in the foregoing conclusion, and the proposition does not preclude or render unnecessary further consideration of points presented in the brief, then we dispose of them as follows: (1) All the remaining propositions.and assignments of the appellant pertain to matters which were foreclosed by the default judgment. For instance, the second proposition and assignment 4 complain that the court erred in rendering the default judgment against the appellant, in that there was no admissible evidence that the appel-lee duly filed with the Industrial Accident Board notice that he would not abide by the adverse ruling made by the Board. The fifth assignment complains that there was no admissible evidence showing that the required notice of dissatisfaction or unwillingness to abide by the ruling of the Board was filed within twenty days after the adverse ruling, etc. Since a default judgment operates as an admission of the material facts alleged in the petition, or, as otherwise expressed, a judgment by default admits all the facts that are well pleaded (25 Tex. Jur. p. 403, §§ 38, 39, et seq.), the questions raised by such assignments and propositions become immaterial in the state of this record. We, therefore, pass to a consideration of the merits of the motion to set the judgment aside.

2. That motion is itself in the nature of a bill of review and is not verified. The allegations of the motion are to the effect that the defendant had a meritorious defense to the suit, and that the judgment is in no wise attributable to any fault or negligence on its part in presenting its defense. Further, the allegations are denied by the plaintiff’s answer thereto. If the allegations relating to a meritorious defense, diligence, etc., on the part of the appellant be deemed sufficient to present such issues, nevertheless it did not support them with any character of proof. They were not even supported by ex pax-te affidavits. In this state of the record, and upon these issues, the court committed no error in overruling the motion. Cragin v. Henderson County Oil Dev. Co. (Tex. Com. App.) 280 S. W. 554; Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195, 199; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Texas Standard Life Ins. Co. v. Mitchell (Tex. Civ. App.) 68 S. W.(2d) 628, 630 ; Humphrey v. Harrell (Tex. Civ. App.) 19 S.W. (2d) 410; Id. (Tex. Com. App.) 29 S.W.(2d) 963, 964; Holliday v. Holliday, 72 Tex. 581, 10 S. W. 690; Lee v. Zundelowitz (Tex. Civ. App.) 242 S. W. 279; Homuth v. Williams (Tex. Civ. App.) 42 S.W. (2d) 1048; Peters v. Hubb Diggs Co. (Tex. Civ. App.) 35 S.W.(2d) 449; Briggs v. Ladd (Tex. Civ. App.) 64 S.W.(2d) 389; Booker v. Coulter (Tex. Civ. App.) 151 S. W. 335; Wear v. McCallum, 119 Tex. 473, 33 S.W.(2d) 723; Canion v. Brown (Tex. Civ. App.) 48 S.W.(2d) 1031; Colorado River Synd. Subscribers v. Alexander (Tex. Civ. App.) 288 S. W. 586; El Paso & S. W. R. Co. v. Kelley, 99 Tex. 87, 87 S. W. 660; Gilbert v. Cooper, 43 Tex. Civ. App. 328, 95 S. W. 753; Western Lumber Co. v. Chicago, R. I. & G. Ry. Co. (Tex. Civ. App.) 180 S. W. 644; Thomas v. Goldberg (Tex. Civ. App.) 283 S. W. 230; Counts v. Southwestern Land Co. (Tex. Civ. App.) 208 S. W. 207; Miller v. First State Bank & Trust Co. (Tex. Civ. App.) 184 S. W. 614.

The service of process being sufficient, it was necessary, among other things, for the appellant to make a prima facie showing of a meritorious defense. Cragin v. Henderson County Oil Dev. Co., and other authorities, supra; Chaney v. Allen (Tex. Civ. App.) 25 S.W.(2d) 1115; Farrell v. Truett, Abernathy & Wolford (Tex. Civ. App.) 60 S.W.(2d) 475.

By neither pleading, nor. proof, was 'the judgment shown to be chargeable to fraud or "misconduct on the part of the plaintiff. Panhandle C. & W. Co. v. Best (Tex. Civ. App.) 58 S.W. (2d) 140; Thomas v. Goldberg, supra.

The defendant’s second amended motion to set aside the judgment is incorporated in the bill of exception purporting to bring before this court the testimony on the hearing on the motion. As said in Humphrey v. Harrell, supra: “The fact that plaintiffs introduced their petition did not meet the requirement of the rule stated, and the trial court correctly held that they were not entitled to the relief prayed for.” The court was there considering the showing essential to the setting aside of the judgment by default.

No evidence having been introduced in support of the alleged meritorious defense, naturally the trial court was unable to determine that a new trial might reasonably result in a different judgment. This court is in the same attitude. As said in Lawther Grain Co. v. Winneford; supra: “Courts ought not in such cases set aside judgments rendered except upon a showing which, if true and unexplained, would change the result on a subsequent trial.”

Further, the disposition of the motion for a new trial rested in the sound discretion of the trial court, and this court would not be warranted in setting aside that judgment unless it affirmatively appeared that such discretion had been abused. No such showing is made. Texas Standard Life Ins. Co. v. Mitchell, Thomas v. Goldberg, Peters v. Hubb Diggs Co., Farrell v. Truett, Abernathy & Wolford, Briggs v. Ladd, supra; Sneed v. Sneed (Tex. Civ. App.) 296 S. W. 643; Homuth v. Williams, Lawther Grain Co. v. Winneford, supra; Davis v. Cox (Tex. Civ. App.) 4 S.W. (2d) 1008; Cragin v. Henderson County, supra; St. Paul Fire & Marine Ins. Co. v. Earnest (Tex. Civ. App.) 293 S. W. 677.

Under the facts of this case there is no merit in the contention that appellee’s attorney should have notified the appellant’s attorney when the ease would be called for trial. Under the law no legal duty rested upon the attorney for the plaintiff to refrain from taking judgment without notifying the opposing counsel, known to represent the opposite party. Davis v. Cox (Tex. Civ. App.) 4 S.W.2d) 1008 (6); Stevenson v. Thomas (Tex. Civ. App.) 56 S.W. (2d) 1095. In this case, the petition upon which the judgment was taken showed a good cause of action as against the general demurrer. The judgment was taken upon a writ of inquiry pursuant to which testimony was introduced in support of the essential allegations of the petition. In that state of the record and in view of the nature of the contentions here made, we are doubtless not called upon to review the testimony originally offered in support of the judgment (Sugg v. Thornton, 73 Tex. 666, 9 S. W. 145; Gilbert v. Cooper, 43 Tex. Civ. App. 328, 95 S. W. 754), but we have examined the same and cannot say that the judgment as originally entered is without support in the testimony on any material element. However, it is believed that the points material to a consideration and a disposition of this appeal, aside from the sufficiency of service and return, pertain merely to meritorious defense, diligence, fraud, accident, or mistake, vel non. Cragin v. Henderson County, supra, and the authorities last cited.

After a careful consideration of the points presented, we have reached the conclusion that the judgment of the trial court should be affirmed. For the reasons assigned it is so ordered.