Johnson v. Cole

10 Citing cases

  1. In re Weiss

    235 B.R. 349 (Bankr. S.D.N.Y. 1999)   Cited 19 times
    Stating that the judge "may look beyond the [judgment] and examine the parties' pleadings as well as the evidence in the [prior action] to determine whether the [identical issue] was actually litigated"

    For example, no evidence was presented to this Court that the Plaintiffs filed a petition swearing to the justness of the cause of action and there is also no indication that the Debtor filed a power of attorney. See, however, Chestnutt v. Pollard, 77 Tex. 86, 13 S.W. 852, 852-53 (1890) (holding that an affidavit attesting to the justness of a plaintiff's cause of action is unnecessary where a judgment is confessed in an action in which process has been regularly issued and served); Johnson v. Cole, 138 S.W.2d 910, 913 (Tex.Civ.App. 1940) (holding that a confessed judgment agreed to by the confessing party's attorney is not invalid on its face even though a power of attorney was not filed or recited in the judgment). In addition, as discussed above, the Texas Judgment is ambiguous in that it states that the court "accepted the confession of judgment and the agreed judgment and ordered that same be filed as part of the record in this cause."

  2. Seaprints, Inc. v. Cadleway Props., Inc.

    446 S.W.3d 434 (Tex. App. 2014)   Cited 13 times
    Concluding party waived hearsay objection to summary-judgment evidence by failing to obtain ruling in trial court and evidence remained part of summary-judgment record to be considered on appeal

    Other cases referenced by Cadleway contain similar language. See Sgitcovich v. Oldfield, 220 S.W.2d 724 (Tex.Civ.App.-Galveston 1949, writ ref'd); Johnson v. Cole, 138 S.W.2d 910 (Tex.Civ.App.-Austin 1940, writ ref'd) ; Crawford v. Gibson, 203 S.W. 375 (Tex.Civ.App.-Dallas 1918, writ ref'd). All of these cases have an antecedent in Randall v. Collins, 58 Tex. 231 (1881).

  3. Aguilar v. Livingston

    154 S.W.3d 832 (Tex. App. 2005)   Cited 41 times
    Stating appellate courts have reviewed denial when challenged appeal from final judgment or order

    Therefore, we cannot conclude that the officer's failure to also note the time he received the citation on the return renders service defective. See Johnson v. Cole, 138 S.W.2d 910, 912 (Tex.Civ.App.-Austin 1940, writ ref'd) (finding that mistake on return of service as to the date officer received the citation did not render service void because citation was duly issued, duly and timely served upon defendant, and complied with the law in all other respects). The return shows the date the officer received the citation, but not the hour.

  4. Conseco Finance Servicing v. Klein Independent School District

    78 S.W.3d 666 (Tex. App. 2002)   Cited 56 times
    Holding unreadable handwritten date in endorsement of return plainly discernable when return was viewed as a whole

    "A return should be given a fair, reasonable and natural construction to its plain intent and meaning." Bavarian Autohaus, Inc. v. Holland, 570 S.W.2d 110, 114 (Tex.App.-Houston [1st Dist.] 1978, no writ); accord Johnson v. Cole, 138 S.W.2d 910, 912 (Tex.App.-Austin 1940, writ ref'd) (stating that, in view of the printed year dates on the form of the citation and the year the citation was issued, there was no doubt as to the year endorsed by the officer on the return); Nelson v. Remmert, 726 S.W.2d 171, 172 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) (holding officer's return complied with Rule 107 when officer endorsed that he served the citation by certified mail on December 10, 1985 and the actual date the citation was delivered or received was omitted but the postmark on the return receipt was dated December 14, 1985); Pratt v. Moore, 746 S.W.2d 486, 488 (Tex.App.-Dallas 1988, no writ) (holding when citation was issued on October 11, 1986, and return showed it was served on November 11, 1986 and filed with the court on November 14, 1986, return was not fatally defective for officer's erroneous typographical endorsement that he had recorded it on November 30, 1986, as this was clearly error that should have read " October"). Viewing the return as a

  5. Pratt v. Moore

    746 S.W.2d 486 (Tex. App. 1988)   Cited 10 times
    Holding when citation was issued on October 19, 1986, and return showed it was served on November 11, 1986, and filed with the court on November 14, 1986, return was not fatally defective for officer's erroneous typographical endorsement that citation came to hand November 30, 1986, as this was clearly error that should have read October

    We do not regard such an apparent irregularity as constituting a fatal defect, when in all other respects the citation is in compliance with the requirements of Rule 107 of the Texas Rules of Civil Procedure. Johnson v. Cole, 138 S.W.2d 910, 912 (Tex.Civ.App. — Austin 1940, writ ref'd). Appellants' third point of error is overruled.

  6. Hogan v. City of Tyler

    602 S.W.2d 555 (Tex. Civ. App. 1980)   Cited 7 times

    The record reveals that the instant suit was filed approximately eight years after the County Court judgment was rendered. The rule in Texas seems to be that the suit is barred by the four year statute. It has been held that the four year statute barred a suit to set aside an execution sale, Holt v. Holt, 59 S.W.2d 324, 328 (Tex.Civ.App. Texarkana 1933, writ ref'd), barred a suit to set aside a tax foreclosure judgment, Holbert v. City of Amarillo, 294 S.W.2d 243, 246 (Tex.Civ.App. Amarillo 1956, writ ref'd n. r. e.), and barred a suit to set aside a personal judgment ("even in a direct suit to vacate it"). Johnson v. Cole, 138 S.W.2d 910, 913 (Tex.Civ.App. Austin 1940, writ ref'd). We hold that appellants' suit was barred by the four year statute of limitations.

  7. Cortimiglia v. Miller

    326 S.W.2d 278 (Tex. Civ. App. 1959)   Cited 15 times

    At most it only failed to bolster the return. McBride v. Kaulbach, Tex.Civ.App., 207 S.W. 576, error ref.; Pierce-Fordyce Oil Ass'n v. Staley, Tex.Civ.App., 190 S.W. 814; Randall v. Collins, 58 Tex. 231; Johnson v. Cole, Tex.Civ.App., 138 S.W.2d 910. He identified the notation of service on Ann Miller in the return as being in his handwriting and we think it quite understandable that an officer who is serving about 4,000 papers a year, would have some difficulty in identifying a party he served two years and five months after such purported service. That was the intervening time as shown by the record.

  8. Carborundum Co. v. Keese

    313 S.W.2d 332 (Tex. Civ. App. 1958)   Cited 6 times
    In Carborundum Company v. Keese, 313 S.W.2d 332 (Tex.Civ.App. — Amarillo 1958, writ ref'd n.r.e.), citation was directed to Jim Allison, agent of the defendant.

    The rule does not state to the defendant or his agent. Johnson v. Cole, Tex.Civ.App., 138 S.W.2d 910 (writ refused by the Supreme Court); Lamesa Rural High School Dist. v. Speck, Tex.Civ.App., 253 S.W.2d 315 (writ refused N.R.E.); Firman Leather Goods Corporation v. McDonald & Shaw, Tex.Civ.App., 217 S.W.2d 137; Hitt v. Bell, Tex.Civ.App., 111 S.W.2d 1164 and Lemothe v. Cimbalista, by Gates, Tex.Civ.App., 236 S.W.2d 681. The citation here was directed to Jim Allison.

  9. Holbert v. City of Amarillo

    294 S.W.2d 243 (Tex. Civ. App. 1956)   Cited 3 times

    Holt v. Holt, Tex.Civ.App., 59 S.W.2d 324; Johnson v. Cole, Tex.Civ.App., 138 S.W.2d 910; Robinson v. State, Tex.Civ.App., 143 S.W.2d 629; Edens v. Grogan Cochran Lumber Co., Tex.Civ.App., 172 S.W.2d 730; Stewart Oil Co. v. Lee, Tex.Civ.App., 173 S.W.2d 791; Clark v. Puls, Tex.Civ.App., 192 S.W.2d 905. The last two cases cited also hold that even an erroneous final judgment entered by a court having jurisdiction is not void. Considering the last matter mentioned, the Supreme Court of Texas held in the case of Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810, that if a trial court has jurisdiction of the parties and the subject matter, as the trial court did in rendering the tax judgment here involved, its final judgment is not void regardless of how erroneous it may be. Appellant contends that the tax judgment and the procedure thereunder 'was void' because he charges that all of the lots here involved, together with the others sold at the same time, were sold 'in solido.

  10. Wright v. Austin

    175 S.W.2d 281 (Tex. Civ. App. 1943)   Cited 3 times

    "It is now settled that to impeach such a return [of citation], the testimony of one witness is not sufficient, that his testimony [of one witness] must be strongly corroborated, and that the proof must be clear and satisfactory." Johnson et al. v. Cole et al., Tex.Civ.App. 138 S.W.2d 910, 912, writ refused. Many cases are cited by that court in support of the rule announced.