Beck v. Nelson , 1929 Tex. App. LEXIS 590 ( 1929 )

F. A. Nelson and J. A. Erickerson filed this suit in the district court of Wheeler county against L. E. Beck, the Citizens' State Bank, and W. H. Moreman, and by a first amended original petition, upon which citation was issued, sought to recover upon a vendor's lien note in the sum of $1,28O providing for interest at 6 per cent. from date and attorney's fees, and to foreclose the vendor's lien upon a certain quarter section of land situated in Wheeler county. Plaintiffs also sought to recover certain sums alleged to have been paid to the state of Texas as interest and taxes.

It is alleged that the bank is claiming some right, title, and interest in the land, and it is made a defendant for that reason.

Citation was Issued for the defendants in which the file number of the suit is stated to be 1414. The original petition is also indorsed 1414, but it appears that the correct number of the case on the docket of the court is 1514. Judgment by default was taken against all the defendants, and a writ of error was prosecuted to this court.

The first proposition urged is that the petition is insufficient as against a general demurrer. This proposition must be sustained. The petition fails to allege that the defendants have failed to pay either the note or the other amounts sued for as interest and taxes. In a suit upon a note or other contract, an allegation of nonperformance by the defendant is a necessary requisite. Whitaker v. Record, 25 Tex.Supp. 382; Johnson v. Wise (Tex.Civ.App.) 272 S.W. 296; Hart-Parr Co. v. Paine (Tex.Civ.App.) 190 S.W. 822; Cotton v. Thompson (Tex.Civ.App.)159 S.W. 455; Carter v. Olive (Tex.Civ.App.) 128 S.W. 478; Brackett v. Devine, 25 Tex.Supp. 195.

Plaintiffs were not entitled to a foreclosure of their equitable liens without an allegation that they were forced to pay the taxes and interest in order to protect their interest in the property and without the further allegation that the amounts so paid by them had not been paid by the defendants.

R.S. art. 2022, states, as one of the requisites of a citation, that it shall give the file number of 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 file number is misstated in the face of the citation, a judgment by default based thereon must be reversed. Houston, E. W. Tex. Ry. Co. v. Erving, 2 Willson, Civ.Cas.Ct.App. § 122; Duke v. Spiller,51 Tex. Civ. App. 237, 111 S.W. 787.

For the reasons stated, the judgment is reversed and the cause is remanded.