Gainer v. Roberts-Johnson & Rand Shoe Co.

149 S.W. 735, 1912 Tex. App. LEXIS 711

• Court: Court of Appeals of Texas
• Decided: June 15, 1912
• Status: Published

Opinion

PRESLER, J.

In this case defendant in error presents a motion, asking that this case be dismissed, because, among other matters complained of, the return of the sheriff upon the citation in error is defective, in that it does not show that George W. Neill, attorney of record, was served with a copy of said citation in error. The return in question is as follows: “Sheriff’s Return.. Came to hand the 4th day of December, A. D. 1911, at 4 o’clock p. m., and executed the-4th day of December, A. D. 1911, by delivering to George W. Neill, attorney of record, for Roberts-Johnson & Rand Shoe Company;, returned December 4, 1911. Fee serving-copy, 75 cents. George E. Tiernan, Sheriff Terry county, Texas.”

This return is clearly defective upon two-grounds: It does not state that it delivered “a true coby” of the citation, nor that it delivered the same to said attorney “in person,” as required under Revised Statutes, art. 1395. It therefore does not appear from, an inspection of the record that there has-been legal service upon the defendant in» error; and it has been repeatedly held that until such service is affirmatively shown this court cannot take cognizance of the-cause. Womack v. Slade, 23 S. W. 1002; Batey v. Dibrell, 28 Tex. 173, and authorities there cited.

The case will therefore be stricken from-the docket and dismissed; and it is so ordered.