Freestone County, Texas 
Court Case



Page 598
286 S.W. 598
ADAMSON 
v. 
COLLINS.
(No. 345.)
Court of Civil Appeals of Texas. Waco.
May 20, 1926.
Rehearing Denied July 1, 1926.
        Appeal from Freestone County Court; J. F. Roper, Judge.
        Suit by J. W. Adamson against Joe Collins. Judgment for plaintiff, and, from a judgment granting 
defendant a new trial, plaintiff appeals. Affirmed.
        O. M. Wroe, of Groesbeck, and Sam McCorkle, of Mexia, for appellant.
        L. B. Aultman, of Mexia, for appellee.
        BAROUS, J.
        This suit was instituted by appellant, seeking to recover from appellee certain personal property of 
the value of $850, or, in the alternative, its value. In his petition he stated that appellee was a resident of 
Harris county, Tex. After the cause was filed, appellant's attorney filed an affidavit stating that the 
appellee was a transient person and had citation issued and served by publication. Appellee filed no 
answer, and the court appointed an attorney to represent appellee, and judgment was rendered in favor 
of appellant for $850. Within two days after the judgment was rendered, appellee filed his motion for a 
new trial, alleging that the affidavit made by appellant that he (appellee) was a transient person was 
false; that in truth and in fact his residence was in Houston, Harris county, Tex., where he had resided for 
many years, and where he maintained an office as well as a residence. The appellant filed an answer to 
the appellee's motion for new trial, which consisted of a general demurrer and some special exceptions, 
which were overruled, to the effect that the motion should not be granted because it did not state that 
appellee had a meritorious defense. The court's action in overruling the demurrers and exceptions is the 
controlling question presented by this appeal. The court heard evidence on the motion for new trial, and it 
was shown that appellee was and had been a resident of Houston for a number of years; that he had a 
telephone at his home, and maintained an office in one of the main buildings, and was well known in 
Houston. The trial court, during the same term of court at which the judgment was rendered, granted 
appellee's motion for a new trial, and it is from the judgment granting a new trial this appeal is perfected.
        The trial court, during the term at which a judgment is rendered, has a large discretion as to 
whether same shall be set aside. Unless it appears that the trial court has abused that discretion, its 
actions with respect thereto should not be disturbed by the appellate court. Landers v. City of Austin (Tex. 
Civ. App.) 278 S. W. 466. The trial court has no authority or power to render a judgment against a 
defendant until he has been served with citation in accordance with the law. Scales v. Wren, 103 Tex. 
304, 127 S. W. 164; Maury v. Turner (Tex. Com. App.) 244 S. W. 809. Service by publication as on a 
transient person gives the court no jurisdiction over his person unless he is in fact a transient, and, in 
order to authorize a trial court to render judgment on constructive service on an allegation that defendant 
is a transient person, that fact must be established.
        A statement of the testimony offered on the trial of the original cause was approved by the trial 
court and filed as part of the record, and it appears therefrom that appellant Adamson testified that he 
personally knew the appellee; that he had made several efforts to get the personal property involved in 
the litigation and that appellee was in possession thereof; that after the suit was filed he attempted to 
make a settlement with appellee, and that at the time of the trial appellee was then in possession of the 
property; that he had sent citation to Harris county and to Caldwell county for service on appellee, and the 
sheriff reported he could not find him, and that was the reason he
Page 599
made the affidavit that he was a transient. We do not think this testimony shows as a matter of fact that 
appellee was a transient person. On the motion for a new trial, the court heard testimony with reference 
to the residence of appellee, and it was conclusively shown that appellee was not in fact a transient, and 
had never been a transient, but that he was and had been for years a resident of Houston, Harris county, 
Tex. The trial court was justified in holding that the appellee was not a transient person and in holding 
that the affidavit made by appellant in order to get service by publication was in fact not true, and in 
holding that the evidence at the time of the original trial did not authorize a judgment on service as 
against a transient person. It was not error for the court to set aside the original judgment. Gordon v. 
Reeder (Tex. Civ. App.) 202 S. W. 983.
        The judgment of the trial court is affirmed.