Spencer v. Texas Factors, Inc., 366 S.W.2d 699 (Tex. App. 1963). · Go Syfert
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Spencer v. Texas Factors, Inc., 366 S.W.2d 699 (Tex. App. 1963). Cases Citing This Book View Copy Cite
19 citation events across 3 distinct courts.
Strongest positive: Wilson v. Dunn (tex, 1991-01-23)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Wilson v. Dunn
Tex. · 1991 · confidence medium
See Stylemark Constr., Inc. v. Spies, 612 S.W.2d 654, 656-657 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ); Harrison v. Dallas Court Reporting College, 589 S.W.2d 813, 815-816 (Tex.Civ.App.—Dallas 1979, no writ); Kirkegaard v. First City Nat’l Bank, 486 S.W.2d 893, 894-895 (Tex.Civ.App.—Beaumont 1972, no writ); Franks v. Montandon, 465 S.W.2d 800, 801 (Tex.Civ.App.—Austin 1971, no writ); Spencer v. Texas Factors, Inc., 366 S.W.2d 699, 700 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.); cf. Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 144, 148 (Tex.1951) (trial court authorized s…
discussed Cited as authority (rule) Garrels v. Wales Transportation, Inc.
Tex. App. · 1986 · confidence medium
Smith v. Commercial Equipment Leasing Co., 678 S.W.2d 917, 918 (Tex.1984); Whitney, 500 S.W.2d at 97 ; Spencer v. Texas Factors, Inc., 366 S.W.2d 699, 700 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.).
discussed Cited as authority (rule) Verges v. Lomas & Nettleton Financial Corp.
Tex. App. · 1982 · confidence medium
See Lincoln Bank & Trust Co. v. Webb, 620 S.W.2d 174, 178 (Tex.Civ.App.—San Antonio 1981, no writ); Johnston v. Johnston, 575 S.W.2d 610, 611 (Tex.Civ.App.—San Antonio 1978, no writ); Spencer v. Texas Factors, Inc., 366 S.W.2d 699, 700 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.).
cited Cited as authority (rule) Lincoln Bank & Trust Co. v. Webb
Tex. App. · 1981 · confidence medium
Johnston v. Johnston, 575 S.W.2d at 611 ; Spencer v. Texas Factors, Inc., 366 S.W.2d 699, 700 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.).
discussed Cited as authority (rule) Henderson 66 Sales, Inc. v. Harvison
N.D. Tex. · 1973 · confidence medium
“The rule authorizing substituted service, being in derogation of the common law and under some circumstances a harsh rule, must be strictly followed.” Spencer v. Texas Factors, Inc., 366 S. W.2d 699, 700 (Tex.Civ.App. — Dallas 1963, writ ref’d n. r. e.) By the terms of the statute, substitute service can be authorized only “[w]here it is impractical to secure personal service. . . .” This Court finds that the record in this cause of action would not support a finding that it was impractical to secure such personal service.
discussed Cited as authority (rule) Kirkegaard v. First City National Bank of Binghamton
Tex. App. · 1972 · confidence medium
Where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service by leaving a copy of the citation, with petition attached, at the usual place of business of the party to be served, or by delivering same to any one over sixteen years of age at the party’s usual place of abode, or in any other manner which will be reasonably effective to give the defendant notice of the suit.” In Spencer v. Texas Factors, Inc., 366 S.W.2d 699, 700 (Tex.Civ.App., Dallas, 1963, error ref. n. r. e.), the court said: “The rule authorizing substituted service…
Retrieving the full opinion text from the archive…
Donald D. SPENCER, Plaintiff in Error,
v.
TEXAS FACTORS, INC., Defendant in Error
16153.
Court of Appeals of Texas.
Mar 22, 1963.
366 S.W.2d 699
1963 Tex. App. LEXIS 2016
Dixon, Alley & Petrovich, Travis Alley, Fort Worth, for plaintiff in error., Passman & Jones and Bill C. Hunter, Dallas, for defendant in error.
Bateman.
Cited by 16 opinions  |  Published
BATEMAN, Justice.

Plaintiff in error seeks reversal of a money judgment by default rendered against him. Service of citation was had under Rule 106, Vernon’s Texas R.C.P., by serving his wife at his usual place of abode.

He presents a motion for reversal because of his alleged inability to obtain a full and complete Statement of Facts, presenting that since substituted service is authorized by Rule 106 only “where it is impractical to secure personal service” it would have been erroneous for the court below to have signed the order permitting substituted service without hearing and considering evidence proving that it was impractical to Secure personal service, that he was entitled to have this court review such evidence and determine its sufficiency vet non, and that his inability to obtain a statement of what evidence, if any, was pre-' sented and considered by the court entitles him to a reversal. We sustain this motion.

The record before us is far from satisfactory on this point. The order permitting substituted service, which was made by another district judge sitting for the court in which the case was pending, recites that evidence was heard; but this same judge several months later signed a certificate labeled “Statement of Facts” which recited that “no testimony was received by the court prior to the entry of such order and no other evidence being considered by the court other than such motion,” and then several months after that signed another certificate reciting that at the time he certified that he heard no evidence he “had no independent recollection of what evidence, if any, was” received or considered in passing upon the motion for an order authorizing service under Rule 106. He then signed an “Amended Certificate and Affidavit” and an “Order Amending, Correcting and/or Supplementing the Record and Directing Certification and Transmission of Supplemental Transcript to Court of Civil Appeals” in both of which he stated that “Defendant is unable to obtain the Statement of Facts covering the entry of the order authorizing service under Rule 106, T.R.C.P.,” other than as shown by his own amended certificates mentioned above.

The rule authorizing substituted service, being in derogation of the common law and under some circumstances a harsh rule, must be strictly followed. A trial court should not sign an order authorizing such service without hearing and considering evidence of probative value to the effect that it was impractical to obtain personal service. Otherwise, defendants and[*701] the courts would be exposed to possible fraudulent allegations of impracticality which could not be supported by proof, resulting in great injustices.

It is obvious from the record before us that it was impossible for plaintiff in error to obtain a statement of facts which would enable this court to review the evidence, if any, and determine its sufficiency to support the order in question. That being true, the judgment must be reversed, and this we do on the authority of 3-A Tex.Jur. 686; Strode v. Srygley, Tex.Civ.App., 342 S.W. 2d 638, err. ref. n. r. e., and Johnson v. Brown, Tex.Civ.App., 218 S.W.2d 317, err. ref. n. r. e.

Reversed and remanded.