Liquid Carbonic Co. v. Head , 48 S.W.2d 464 ( 1932 )

BAUGH, J.

Mary E. Head sued W. H. Logan, her tenant, for rents and for foreclosure of her landlord’s lien on his furniture, fixtures, and stock of merchandise located in a building in the city of San Angelo owned by her and leased to him. In her first amended original petition, copy of which was served on plaintiff in error, she named as codefendants with Logan the Huey-Philips Hardware Company, West Texas Utilities Company, and Liquid Carbonic Company, alleging that they were asserting some character of claim or right against some part of the fixtures of said building, but that said claims, if any, were inferior to and subordinate to her landlord’s lien. She alleged past-due rents in the sum of $615, asked judgment for same, and for foreclosure of her landlord’s lien. This amended petition was filed on July 21, 1930, and contained no description of any of the property sought to be subjected to her lien.

On August 12, 1930, she- filed a second amended original petition in which W. L. Logan was made an additional party defendant, past-due rents in the sum of $865 were sued ior, alleged that a distress warrant had been sued out and all property situated in said building, iully describing same by items, had been seized, asked for a foreclosure of her lien thereon as against all defendants, and asked for appointment of a receiver with power to sell said property before judgment. Plaintiff in error was not served with any notice of this amendment.

W. L. Logan, the new defendant, filed a cross-action against W. H. Logan for $1,000, evidenced by a note executed by W. H. to W. L. Logan, secured by a mortgage on a part of the furniture and fixtures in said building, and sought a foreclosure of his mortgage lien, thereon as against the plaintiff Mary E. Head and all other defendants. Plaintiff in error had no notice of this cross-action of W. L. Logan.

Plaintiff in error did not answer. Judgment was rendered on November 10, 1930, as follows: Huey-Philips Company was dismissed, judgment entered in favor of Mary E. Head against W. H. Logan for $2,000, in favor of W. L. Logan against W. H. Logan for $1,000, establishing and foreclosing the mortgage lien of W. L. Logan on the furniture and fixtures described in his mortgage, establishing and foreclosing a landlord’s lien in favor of Mary E.- Head against all defendants on all the other property in said building, and ordering sale thereof in accordance with said judgment. On December 18, 1930, the mortgaged furniture and fixtures were bought in at sheriff’s sale by W. L. Logan on his $1,000 judgment, at $50; and all the remaining furniture, fixtures, and the stock of merchandise seized by the sheriff were bid in for $50 by Mary E. Head on her $2,000 judgment against W. H. Logan.

Since we have concluded that reversal is necessary under the first contention made by plaintiff in error, and that the other matters complained of will probably not arise upon another trial, we shall discuss only the first proposition; that is, that plaintiff in error was entitled to have notice of the second amended original petition above referred to, and of the cross-action of W. L. Logan.

It is clear, we think, that the plaintiff’s second amended original petition set up a new cause of action so far as plaintiff in error was concerned, and authorized a more onerous judgment against plaintiff in error than did the first amended petition with which it was served. Under the first amended petition only $615 in rents were claimed, and no description whatever of the property of W. H. Logan situated in said building was given whereby plaintiff in error could determine whether the portion on which it may have claimed a lien was included. In any event, it had a right to assume, in failing to answer in said suit, that, under the pleadings of which it had notice, Mary E. Head would take judgment for only $615, and subject said property to her lien only to that extent, leaving the liens of the other defendants in force as to any and all other property in excess of that necessary to satisfy her debt. The second amended pleading not only increased that amount to $865, but made W. L. Logan an additional party, who in turn set up liens to the extent of $1,000 additional, showed seizure of said property under a distress warrant, asked for appointment of a receiver to sell said property, and for foreclosure of her lien as against all defendants. Instead of a judgment for $615 declaring a lien on said property, the judgments rendered in favor of Mary E. Head and W. L. Logan aggregated $3,000¡ for which liens were established and foreclosed. The record also shows that all of said furniture, fixtures, and stock of merchandise were sold to these two creditors for an aggregate sum of $106, obviously an inadequate price. The nature, character, nor extent of plaintiff in error’s lien is not shown, nor to what property it attached; but it is obvious that its security was measurably reduced by an increase of prior liens on said property from $615, all that was claimed in the citation served upon it, to $3,-000, for which judgment was rendered under the amended pleadings, of which it had no notice.

Increasing the amount of plaintiff’s demand or adding a new party defendant by amendment or intervention by a third party have all been held to require additional notice to a defendant already served in order to sustain a default judgment against him on the original service. Hittson v. Gentry, 2 Tex. Civ. App. 670, 22 S. W. 70; Roller v. Ried, 87 Tex. 71, 26 S. W. 1060; Mann v. Mathews, 82 Tex. 98, 17 S. W. 927. And an amended pleading which authorizes a more onerous judgment against a defendant than the pleading with which he was served would sustain has been held to constitute a new cause of action requiring additional notice to such defendant. S. A. U. & G. Ry. Co. v. Hales (Tex. Civ. App.) 196 S. W. 903; Young v. City Nat’l Bank of Galveston (Tex. Civ. App.) 223 S. W. 340.

Nor could a remittitur filed by plaintiff after the judgment was rendered, all the property sold, and writ of error applied for, cure the error. Plaintiff in error was entitled to an opportunity to protect its security before judgment and before sale thereof by the sheriff under the judgment. A re-mittitur afterwards offers it no opportunity to do so.

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