Fleming-Stitzer Road Bldg. Co. v. Rominger

250 S.W. 456, 1923 Tex. App. LEXIS 790

• Court: Court of Appeals of Texas
• Decided: April 5, 1923
• Docket: No. 1452.
• Status: Published

Opinion

HARPER, C. J.

This is a writ of error from a judgment in favor of defendants in error upon writ of garnishment.

The application for the writ recites that Rominger & Co. had then pending a suit against M. C. Donovan, upon open account for $290.19, and after the usual allegations prayed for a writ of garnishment against G. A. Davidson, who is doing business under the name of Fleming-Stitzer Road Building Company, and for judgment for any amount owing to the latter, etc.

Writ was issued and placed in the hands of the sheriff. His return reads:

“Came to hand the 30th day of September, 1921. * * * and executed * * * by leaving a true copy of this writ in the office of G. A. Davidson for G. A. Davidson, the within named garnishee at Eastland, Texas, a true copy of this writ.”

The point is made that this is not sufficient service of the writ to give the trial court jurisdiction to render the personal judgment against plaintiffs in error by default, as was done in this instance. This is well taken.

Article 278, Revised Civil Statutes, provides :

“The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations.”

The return must recite that a true copy of the writ was delivered to the defendant in person. Mansfield v. Security Trust Co. (Tex. Civ. App.) 175 S. W. 771.

Reversed and remanded.