C. O. Shurtleff Pump Co. v. Radio Corp. of America

418 S.W.2d 314, 1967 Tex. App. LEXIS 2309

• Court: Court of Appeals of Texas
• Decided: July 28, 1967
• Docket: No. 4184
• Status: Published

Opinion

WALTER, Justice.

Radio Corporation of America recovered a default judgment in the County Court of Taylor County against C. 0. . Shurtleff Pump Company for the sum of $819.88. C. O. Shurtleff Pump Company, a partnership composed of C. O. Shurtleff and Grace M. Shurtleff, has filed an application for a writ of error. The certificate of service of Shurtleff’s lawyer set out in its brief states that a copy of the brief was delivered to Radio Corporation of America’s attorney. However, we have not been favored with a brief from him.

In Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935), the court said:

“A judgment by default without proper service of citation is void. State Mortgage Corp. v. Traylor, 120 Tex. 148, 36 S.W.(2d) 440; Levy v. Roper, 113 Tex. 356, 256 S.W. 251. On a direct attack, such as this, the usual presumption of service because of the recital in the judgment, ‘that defendants though duly and legally cited to appear and answer, came not but wholly made default,’ does not obtain, and the error resulting from the absence in the record of the necessary showing necessitates a reversal of the judgment.”

The Supreme Court cited Flynt with approval in McKanna v. Edgar (1965), 388 S.W.2d 927, at page 928.

Citation was issued to C. O. Shurtleff Pump Company. The certificate of delivery on the citation as follows:

“I do hereby certify that I delivered to O. C. Shurtleff on the 22 day of July, 1966, at 9:25 o’clock a. m. this copy of this instrument.

Sheriff W. L. Claxton Mitchell County, Texas By: Forrest Smith, Deputy.”

We conclude that service of citation on O. C. Shurtleff is not service on C. O. Shurtleff Pump Company.

The judgment is reversed and the cause is remanded.