James v. Watson

2 Posey 741

Opinion

Suit by appellee against appellant in Jefferson county. Appellee lived in Grayson county. Citation issued to that county, and was returned indorsed: “ Came to hand - and executed-by delivering to the within named defendant, -, a true copy of the citation.” Judgment by default taken, and defendant brings it up by writ of error. Held:

1. The delivery to defendant of a copy of the plaintiff’s petition is rendered by law as indispensable to valid service as the delivery to defendant of a copy of the citation; neither the copy of one nor the other can be omitted. 11 Tex., 256; 19 Tex., 56; 4 Tex., 309.

2. Where the service of the citation appears from the record to be defective, it is not incumbent on the defendant to appear and make the objection in the court below; he may take advantage of it by writ of error. 4 Tex., 49.

3. The citation and sheriff’s return are before this court as a part of the record, and a fortiori, the mere construction in law as to validity of the service as contained in the judgment cannot be regarded. 45 Tex., 466; 17 Tex., 649.

Reversed and remanded.