Holloman v. Middleton

23 Tex. 537

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Wheeler, C. J.

The statute authorises service of the citation in error, on the attorney of record, when the defendant in error is a non-resident of the state, or cannot be found. (Hart. Dig., Art. 793.) Here the defendantin error was aresident of the county. Service on the attorney, therefore, was unauthorised. Motions to dismiss the writ of error upon this ground have been sustained. (3 Texas Rep. 511; 10 Id. 270, 290.)

The court has not had occasion to consider the effect of their sustaining the motion. But where it is for the want of service of the writ or citation, we suppose it has not been understood, that the petition in error is dismissed, but only that the case is dismissed from this court, leaving the party at liberty to proceed to perfect service. That such has been the understanding of this court, is evident from the fact, that the action of the court in such cases, has sometimes been to strike the case from the docket. (Davenport v. Field, 12 Id. 94.) Such, and no more, it would seem, must be the effect of the dismissal, for the reason that this court does not acquire jurisdiction of the cause until after service of the writ of error.

Where service of the citation has been acknowledged by the attorney, we have refused to dismiss for the want of service on the party, because the court would not proceed upon the supposition, that the attorney had not authority to acknowledge service for the party. But as there was not such acknowledgment in this case, and no legal service, the case must be stricken from the docket.

Dismissed.

Roberts, J., did not sit in this case.