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Thompson v. Mayhew Lumber Co.

Court of Civil Appeals of Texas, El Paso
Apr 8, 1937
103 S.W.2d 1005 (Tex. Civ. App. 1937)

Opinion

No. 3511.

April 8, 1937.

Appeal from District Court, Dimmit County; J. F. Mullally, Judge.

Suit by the Mayhew Lumber Company against George Thompson and others. Judgment for the plaintiff, and the defendants appeal.

Affirmed.

On June 26, 1933, the Mayhew Lumber Company, in writing, agreed to sell and convey to E. H. Stuessy two parcels of land in Dimmit county, for which Stuessy agreed to pay $3,317.90, as evidenced by his notes, two of which were payable to Citizens State Bank and the others to the lumber company. The notes in favor of the bank were payable first and constituted a first lien against the land. Deed was to be executed when note No. 1 in the bank's favor was paid.

January 2, 1934, George Thompson and others recovered a judgment for $251.32 against Stuessy. An abstract of this judgment was recorded January 18, 1934.

January 24, 1935, the Citizens State Bank assigned its notes and lien to the lumber company.

December 9, 1935, Stuessy conveyed the land to the lumber company in consideration of the cancellation of the notes described in the contract of sale of June 26, 1933.

Later this suit was filed by the lumber company against the judgment creditors above mentioned to recover the land and remove the cloud cast upon the title by the abstract of judgment. The petition alleged the defendants resided in Atascosa county.

Citation directed to Frio county was served in that county upon one of the defendants. The other defendants were served in Medina county upon citation directed to such county.

In the petition it was alleged, and upon trial it was agreed by the parties, that Stuessy was the common source of title.

Defendants moved to quash the citations. The motion was overruled. The defendants then answered, and upon trial without a jury judgment was rendered in plaintiff's favor as prayed.

Walter Stout, of San Antonio, for appellants.

Johnson Long, of Carrizo Springs, for appellee.


Appellants' propositions present but two points, the first of which is the court erred in overruling the motion to quash the citations.

Briefly stated, the court found citation was duly issued to Atascosa county where the petition alleged the defendants resided. The citation was returned unserved by the Atascosa county officer with the information that one of the defendants resided in Frio county and the others in Medina county; whereupon plaintiff's attorney verbally requested the clerk to issue citations to Frio and Medina counties. The clerk then issued citations to said counties, and same were duly served. No assignment challenges the accuracy of these findings. The evidence shows the original citations were used, the clerk simply causing the word Atascosa to be erased by his deputy, and Frio interlined in the citation to that county, and Medina interlined in the citation to that county.

Appellants' theory is that since the petition alleged the residence of the defendants to be in Atascosa county, the clerk had no authority to issue citations to Frio and Medina.

The citations to Atascosa county having been returned by the officer of that county unserved, the clerk was authorized to issue other process to such other counties as the plaintiff's attorney directed. Article 2035, R.S. It was not necessary for an amended or supplemental petition to be filed by plaintiff showing the residence of the defendants to be in Frio and Medina counties. 33 Tex.Jur., Process Notice, § 14; Lauderdale v. R. T. A. Ennis S. Co., 80 Tex. 496, 16 S.W. 308; Gillmour v. Ford (Tex.Sup.) 19 S.W. 442; Pierson v. Beard (Tex.Civ.App.) 181 S.W. 765.

Nor was it necessary for plaintiff to make application in writing for the issuance of the citations to Frio and Medina counties. The verbal request of plaintiff's attorney was sufficient. Buchanan v. Hunter (Tex.Civ.App.) 13 S.W.2d 451; Fort Worth D.C. R. Co. v. Hagler, 38 Tex. Civ. App. 52, 84 S.W. 692; Pierson v. Beard, supra.

The fact that the citations to Frio and Medina counties did not show they were alias citations did not invalidate the process. Buchanan v. Hunter, supra.

As we understand appellants' remaining propositions, they present the point that by virtue of the common source agreement and pleading, plaintiff was precluded from showing the superiority of its title under the reconveyance to it by Stuessy.

The judgment lien of the defendants is subordinate to the title of plaintiff. Silliman v. Gammage, 55 Tex. 365; Tankersley v. Jackson (Tex.Civ.App.) 187 S.W. 985; Elliott v. C. C. Slaughter Co. (Tex.Civ.App.) 236 S.W. 1114.

Nor did the common source agreement preclude plaintiff from showing the facts establishing the superiority of its title under the reconveyance from Stuessy over the judgment lien of the defendants. Taylor v. Doom, 43 Tex. Civ. App. 59, 95 S.W. 4.

The judgment is affirmed.


Summaries of

Thompson v. Mayhew Lumber Co.

Court of Civil Appeals of Texas, El Paso
Apr 8, 1937
103 S.W.2d 1005 (Tex. Civ. App. 1937)
Case details for

Thompson v. Mayhew Lumber Co.

Case Details

Full title:THOMPSON et al. v. MAYHEW LUMBER CO

Court:Court of Civil Appeals of Texas, El Paso

Date published: Apr 8, 1937

Citations

103 S.W.2d 1005 (Tex. Civ. App. 1937)