Chowning v. Sumner

3 Willson 447

• Court: Court of Appeals of Texas
• Decided: October 31, 1888
• Docket: No. 2810
• Status: Published

Opinion

Opinion by

White, P. J.

§ 374. Return of service of citation held insufficient to support judgment by default. This writ of error is prosecuted from a judgment by default rendered against H. Chowning, as administrator, and one Tim Chowning. H. Chowning alone prosecutes the writ. The return of service of citation in the case is as follows: “Came to hand the 4th day of November, A. D. 1886, at — o’clock — M., and executed the 6th day of November, 1S8C, by delivering to H. Chowning, and on the 9th Tim Chowning, the within-named defendant, in person, a true copy of this writ. G. T. Douglas, Sheriff of Wilbarger County, Texas.” Held: The return of service is insufficient. When there is more than one defendant the return must show that each defendant, in person, was served with a copy of the citation. [Sayles’ Civ. Stat. art. 3219.] The return above quoted does not show that H. Chowning was served with citation. On the contrary, it shows that Tim Chowning only was served. The judgment by default as to H. Chowning cannot therefore be permitted to stand. [Sayles’ Civ. Stat. art. 1225 and note; Holliday v. Steele, 65 Tex. 388; 2 App. C. C. § 269.]

October 31, 1888.

Reversed and remanded.