Opinion
No. 950.
April 10, 1919. Rehearing Denied May 1, 1919.
Appeal from District Court, Taylor County; Joe Burkett, Judge.
Action by John C. Kimmell, Jr., against E. D. Edwards and others. Judgment for defendants, and plaintiff appeals. Affirmed.
See, also, 193 S.W. 363; 194 S.W. 168.
Cunningham Oliver, of Abilene, for appellant.
J. M. Wagstaff, of Abilene, for appellees.
Appellant brought this suit to set aside a judgment by default against him, in favor of appellee, and to enjoin its execution upon the ground that he was not served with proper citation, in that he was a nonresident of the county in which the suit was filed, and that no copy of plaintiff's petition was served upon him, as provided by statute in such cases, and that for that reason the judgment is void.
The defense pleaded is that a citation was served, and that by virtue thereof plaintiff had due notice of the fact that such suit was pending, * * * and of the judgment rendered, * * * and with such knowledge he made no motion to set it aside during the term at which it was rendered, and failed to appeal, therefore he cannot now be heard to complain, etc.
The cause was tried with a jury, submitted upon special issues, and upon the verdict rendered judgment was entered for defendant, from which this appeal.
The jury found that the appellant was served with a copy of the citation but was not served with a certified copy of plaintiff's petition; that he could have discovered by the exercise of ordinary diligence the fact of the rendition of the judgment in time to file a motion for new trial before the adjournment of the term of court at which it was rendered; and that the copy of the citation served was sufficient to put a reasonably prudent person, similarly situated, upon notice that a judgment would likely be rendered against him by default, in the absence of his appearance.
Appellant urges: First, that the court erred in not rendering judgment for him upon the first finding, upon the proposition that because no certified copy of the petition was served upon him the court acquired no jurisdiction over his person, without which the court had no jurisdiction to render the judgment entered, such judgment was for that reason void; Second, it is urged that the court erred in submitting the second question, i. e. that he had such notice of the judgment as to require him to move to set the judgment aside at the term at which it was rendered.
It is apparent that the trial court submitted the case upon the theory that under the pleadings and evidence the appellee Edwards had two distinct defenses to the cause of action alleged. In so doing the court followed the holdings of the Court of Civil Appeals of the Second District upon a former appeal of this case. Kimmell v. Edwards, 193 S.W. 363, and 194 S.W. 168. The rule is that upon the second or other appeal the ruling made upon the first appeal will be deemed the law of the case upon all subsequent proceedings. M., K. T. Ry. Co. v. Redus, 55 Tex. Civ. App. 205, 118 S.W. 208. Appellee has invoked this rule, and we conclude that his appeal presents a proper case for its application.
The jury having found that the appellant had such notice of the judgment entry as to require him to take the steps indicated to have it set aside during the term at which it was rendered, and having concluded that there is evidence to support the finding, we are of the opinion that the court did not err in submitting the question and entering its judgment upon the verdict of the jury for appellee.
There are other assignments urged by appellant, but we think all are dependent upon the holdings above, so it is not necessary to specifically pass upon them.
Believing that there is no reversible error, the cause is affirmed.