CARLSON BOAT v. HAUCK

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Docket Number

No. 15680.

Attorney(S)

McLeod, Alexander, Powel Apffel, V. W. McLeod, Galveston, for appellant. Perry Archer, Roy Murphy, III, Houston, for appellee Liberty Mutual Insurance Co.

Judges

COLEMAN, Justice.

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Smart Summary

Factual and Procedural Background

This case arises from a petition filed by the plaintiff seeking damages for injuries sustained in a boat accident allegedly caused by the defective manufacture of the plaintiff's boat by Carlson Boat Works. The accident occurred on or about August 20, 1967, near the San Jacinto River in Harris County, Texas. The plaintiff named Carlson Boat Works as the defendant, describing it alternatively as a corporation, a partnership, or a sole proprietorship, and attempted service of citation on its agents, Jim Pollard and Gordon Cooper. A default judgment was entered against Carlson Boat Works. The appellant filed a petition for writ of error to set aside this default judgment, challenging the validity of service and the trial court's jurisdiction.

Legal Issues Presented

Whether the trial court had in personam jurisdiction over the defendant given the alleged defective service of citation.
Whether the appellant could properly seek relief from the default judgment by writ of error rather than by bill of review under Rule 329b, Texas Rules of Civil Procedure.
Whether the timing of discovery of the default judgment affects the availability of appeal by writ of error.

Arguments of the Parties

Appellees' Arguments

The appellees argued that under Rule 329b, T.R.C.P., and the Supreme Court’s interpretation in McEwen v. Harrison, relief from the default judgment could only be obtained by bill of review because the time for perfecting an appeal had passed.

Appellant's Arguments

The appellant contended that the default judgment was void due to defective service of citation, which deprived the trial court of jurisdiction.
The appellant maintained that a writ of error was a proper method to challenge the default judgment, especially when discovered within thirty days after rendition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Watson Van Storage Co. v. Alvin R. Busse, 451 S.W.2d 557 (Tex.Civ.App. 1970)	Requirement for proper statement of manner of service of citation under Rule 107, T.R.C.P.	Supported the finding that the citation return was defective for failure to state the manner of service.
Diamond Chemical Co. v. Sonoco Products Co., 437 S.W.2d 307 (Tex.Civ.App. 1968)	Same as above regarding citation service requirements.	Reinforced the defectiveness of the citation return.
McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965)	Strict compliance with mode of service required for in personam jurisdiction; appeal by writ of error available for void judgments.	Supported the court’s conclusion that service on Jim Pollard did not confer jurisdiction and that writ of error was appropriate.
Bankers Life and Casualty Co. v. Watson, 436 S.W.2d 404 (Tex.Civ.App. 1969)	Requirement of strict compliance with service rules for jurisdiction.	Reinforced lack of jurisdiction due to defective service.
Aetna Casualty and Surety Co. v. Dobbs, 416 S.W.2d 869 (Tex.Civ.App. 1967)	Same principle regarding service and jurisdiction.	Supported court’s jurisdictional analysis.
Firence Footwear Co. v. Campbell, 411 S.W.2d 636 (Tex.Civ.App. 1967)	Strict compliance with service rules for jurisdiction.	Further supported the court’s reasoning on jurisdictional defects.
Sharp Dohme v. Waybourne, 74 S.W.2d 413 (Tex.Civ.App. 1934)	Validity of service and jurisdictional considerations.	Used as precedent for jurisdictional analysis.
McEwen v. Harrison, 345 S.W.2d 706 (Tex. 1961)	Interpretation of Rule 329b regarding relief from default judgments and the exclusivity of bill of review when appeal time has passed.	Central to the court’s discussion on whether writ of error or bill of review was the proper remedy.
Flynt v. City of Kingsville, 82 S.W.2d 934 (Tex. 1935)	Availability of writ of error to challenge void judgments.	Referenced to support the availability of writ of error for jurisdictional defects.
Walker v. S. T. Truck Lines, Inc., 409 S.W.2d 942 (Tex.Civ.App. 1966)	Time limits for filing notice of appeal under Rule 353, T.R.C.P.	Used to explain the impracticality of direct appeal if judgment discovered after ten days.
Donald v. John Vinson, Inc., 344 S.W.2d 751 (Tex.Civ.App. 1961)	Same as above regarding appeal timing.	Supported reasoning on appeal timing and method.

Court's Reasoning and Analysis

The court examined the sufficiency of service of citation on Carlson Boat Works through its agent Jim Pollard. The sheriff’s return failed to specify the manner of service as required by Rule 107, Texas Rules of Civil Procedure, rendering the service defective. Because proper service was not established, the trial court lacked in personam jurisdiction over the defendant, making the default judgment void on its face.

The court then analyzed the procedural vehicle for challenging the default judgment. Citing Rule 329b and the Supreme Court’s interpretation in McEwen v. Harrison, it recognized that while bill of review is generally the exclusive remedy after the appeal period expires, a writ of error remains available when the judgment is void for lack of jurisdiction. The court rejected the appellees’ contention that the appellant was limited to a bill of review, emphasizing that the record did not show whether the default judgment was discovered within thirty days of its rendition.

The court clarified that the Supreme Court did not intend to restrict appeals by writ of error when a default judgment is discovered within thirty days. Furthermore, because a direct appeal requires filing a notice of appeal within ten days—which may be impractical if the judgment is discovered later—the writ of error serves as an appropriate remedy.

Given the defective service and the resulting lack of jurisdiction apparent on the record, and the appellant’s proper perfection of the writ of error, the court concluded that the default judgment must be reversed and the cause remanded for further proceedings.

Holding and Implications

The Court REVERSED AND REMANDED the default judgment entered against Carlson Boat Works.

The direct effect of this decision is to nullify the default judgment due to lack of jurisdiction caused by defective service of citation. The case is sent back to the trial court for further proceedings consistent with proper jurisdictional requirements. The opinion does not establish new precedent but reaffirms the availability of writ of error as a remedy to challenge void default judgments when discovered within thirty days of rendition.

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CARLSON BOAT WORKS, Appellant, v. Leon Edward HAUCK et al., Appellees.

COLEMAN, Justice.

This is a petition for writ of error to set aside a default judgment.

In his petition the plaintiff alleged that Carlson Boat Works was a corporation, or alternatively a partnership, 'or alternatively a sole proprietorship whose agents, Jim Pollard and Gordon Cooper, may be served with citation c/o Performance Unlimited, 3331 Tripplett, Bacliff, Galveston County, Texas.'

Except for the prayer, the allegations naming the parties and the style of the case, the petition reads:

'This action is to recover for damages suffered by plaintiff in a boat accident resulting from the defective manufacture of plaintiff's boat by defendant occurring on or about the 20th day of August, 1967, at or near the San Jacinto River in Harris County, Texas, to plaintiff's damage in the sum of in excess of one thousand ($1,000.00) dollars.'

Citation was issued to 'Carlson Boat Works, a corporation, partnership or a sole proprietorship.' The sheriff's return reads: 'Came to hand on the 14 day of Nov. A.D., 1968, at 10:31 o'clock a.m., and executed in Galveston County, Texas, by delivering to each of the within named defendants, in person a true copy of this citation, together with the accompanying copy of Plaintiffs' Original Petition at the following times and place, to wit: Carlson Boat Works 'by serving' Jim Pollard * * *'

The return on the citation is defective for failure to state the manner of service as required by Rule 107, Texas Rules of Civil Procedure. Watson Van Storage Company v. Alvin R. Busse, 451 S.W.2d 557 (Tex.Civ.App. — Houston 1st Dist. 1970, n.w.h.); Diamond Chemical Co. v. Sonoco Products Co., 437 S.W.2d 307 (Tex.Civ.App. — Corpus Christi, 1968, n.w.h.).

The fact that the trial court lacked in personam jurisdiction is apparent on the face of the record. The allegations of the petition do not support a finding that service of citation on Jim Pollard constituted 'strict compliance with the provided mode of service.' McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965); Bankers Life and Casualty Company v. Watson, 436 S.W.2d 404 (Tex.Civ.App. — Tyler 1969, writ ref'd n.r.e.); Aetna Casualty and Surety Company v. Dobbs, 416 S.W.2d 869 (Tex.Civ.App. — Eastland 1967); Firence Footwear Co. v. Campbell, 411 S.W.2d 636 (Tex.Civ.App. — Houston 1st 1967, writ ref'd n.r.e.); Sharp Dohme v. Waybourne, 74 S.W.2d 413 (Tex.Civ.App. — Amarillo 1934, n.w.h.).

Appellees contend that by reason of Rule 329b, T.R.C.P., as interpreted by the Supreme Court of Texas in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), the only way appellant could secure the relief desired was by bill of review since the time for perfecting an appeal had passed.

Rule 329b provides that after 30 days from the date a judgment is rendered or a motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time required by law. In McEwen the Supreme Court, said:

'* * * Accordingly, we construe the emphasized provision of Rule 329 — b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process. * * *

'* * * If he is not served with citation and learns of the judgment within 30 days after its rendition, he may file a motion for new trial, which the court is at liberty to grant, and if his motion is overruled he may obtain relief by appeal. If he does not learn of the judgment within 30 days after its rendition but does learn of it within six months, and the invalidity of the judgment is disclosed by the papers on file in the case, he may obtain relief by prosecuting writ of error to a Court of Civil Appeals. Article 2255, V.A.T.S.; Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934.

'If the judgment is one which the court had jurisdictional power to render but it is invalid, he may obtain relief by bill of review as provided in Rule 329 — b whether the invalidity is or is not disclosed by the papers on file in the case. Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.'

It is clear from other language in the opinion that the Court intended the word 'appeal', used in the first paragraph of the quotation, to include appeal by writ of error. See also McKanna v. Edgar, supra.

The question here is whether appeal by writ of error is available if the default judgment is discovered within thirty days after the judgment is entered, or, to be more precise, whether this judgment can be reversed in view of the fact that the record does not reflect whether or not the default judgment was discovered within thirty days of the date of its rendition.

We are not persuaded that the Supreme Court intended, by the language used in McEwen, to limit the right of appeal in a case where a default judgment was discovered within thirty days of the date of its rendition to a direct appeal after the trial court overrules a motion for new trial. The Court clearly recognized the right to appeal by writ of error in the opinion. Unless the default judgment is discovered within ten days of the date of rendition, there could be no direct appeal because no notice of appeal could be filed within the time required by Rule 353, T.R.C.P. Walker v. S. T. Truck Lines, Inc., 409 S.W.2d 942 (Tex.Civ.App. — Corpus Christi 1966, error ref'd); Donald v. John Vinson, Inc., 344 S.W.2d 751 (Tex.Civ. App. — Ft. Worth 1961, error ref'd).

Since appellant properly perfected his appeal by writ of error, and the trial court's lack of jurisdiction is apparent on the face of the record, the judgment by default entered by the trial court must be reversed. The cause is remanded to the trial court.

Reversed and remanded.