Garza v. Garza

223 S.W.2d 964, 1949 Tex. App. LEXIS 2170

• Court: Court of Appeals of Texas
• Decided: October 12, 1949
• Docket: No. 11966
• Status: Published

Opinion

W. O. MURRAY, Justice.

This is a trespass to try title suit instituted by Jose Quintanilla Garza against Bruno Garza, seeking to recover the title and possession of Lot No. 18 in Block 5, in the Colonia Alta Vista, an addition to the City of Brownsville, Cameron County, Texas.

The defendant did not appear and judgment as prayed for was rendered by default in favor of Jose Quintanilla Garza. Bruno Garza has prosecuted this appeal by way of writ of error.

The citation served upon Bruno Garza was fatally defective and therefore will not support a judgment by default. The citation recited that plaintiff’s petition was filed on the 19 day of Oct., 194— This is an impossible date, rendering the citation fatally defective. Rule 101 and Rule 799, Texas Rules Civil Procedure; Sypert v. Rogers Lumber Co., Tex.Civ.App., 201 S.W. 1102; Leavitte v. Brazelton, 28 Tex.Civ.App. 3, 66 S.W. 465; National Ben Franklin Fire Insurance Company v. Scott, Tex.Civ.App., 214 S.W. 604; Wise v. Southern Rock Island Plow Company, Tex.Civ.App., 85 S.W.2d 257.

The judgment is reversed and the cause remanded.

SMITH, C. J., absent.