Bendy v. James Boyce & Co.

37 Tex. 443

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Ogden, J.

The citations in each of these causes are defective in not containing the names of all the defendants. (Johnson v. Brown, 16 Texas, 554; Battle v. Eddy, 31 Texas, 368; Portwood v. Wilburn, 33 Texas, 715.) And the plaintiff below could not cure the defect by dismissing as to one of the parties. The return of the sheriff, that he “ Executed by serv “ ing H. B. Bendy with a copy, etc.,” is not a compliance with the requirements of the statute. (Thomason v. Bishop, 24 Texas, 302; Willie v. Thomas, 22 Texas, 175; Graves v. Robertson, 22 Texas, 130.) Under the defective citation and defective service, judgment was taken by default in each cause, and the defendant Bendy has sued out writs of error. For the defects in the citations and the sheriff’s return, the court below had no such jurisdiction of the person of the plaintiff in error, as would authorize a judgment by default. The judgment in each case is .therefore reversed, and the causes remanded.

Reversed and remanded.