Kellam v. Trail

Court of Appeals of Texas

Kellam v. Trail

185 S.W. 988, 1916 Tex. App. LEXIS 546

CourtCourt of Appeals of Texas

DecidedApril 29, 1916

DocketNo. 7527.

StatusPublished

Cited by2 cases

This text of 185 S.W. 988 (Kellam v. Trail) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kellam v. Trail, 185 S.W. 988, 1916 Tex. App. LEXIS 546 (Tex. Ct. App. 1916).

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Opinion

RAINEY, C. J.

This suit was instituted by defendant in error in the county court of Kaufman county, to recover on a promissory note against A. G., W. C., and H. C. Kel-lam and T. E. Wilson. A. G. Kellam waived service, and T. E. Wilson answered. Judgment was entered for plaintiff against all the defendants. W. C. and H. C. Kellam not having appeared, judgment by default was rendered against them. Execution was issued and levied on property of H. C. Kellam, who sued out this writ of error, filing a super-sedeas bond, and the cause is here for review.

The complaint of plaintiff in error, in effect, is that no proper service of citation was had upon him,.and, he not having answered, the court erred in rendering judgment against him. The return of the officer serving said citation is:

“Came to hand on the 20th day of February, A. D. 1914, at 10 o’clock a. m. and executed on the 5th day of March, 1914, at-o’clock p. m. by delivering to W. C. Kellam and H. C. Kellam, two of the within named defendants, in, person a true copy of this writ.”

This return is fatally defective in failing to show that each of the two Kellams was served with copies of the citation, and was not such as to authorize a judgment against them by default. King v. Goodson, 42 Tex. 152; Holliday v. Steele, 65 Tex. 388; Russell v. Butler, 71 S. W. 395.

The judgment is reversed, and cause remanded.

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RAINEY, C. J.

This suit was instituted by defendant in error in the county court of Kaufman county, to recover on a promissory note against A. G., W. C., and H. C. Kel-lam and T. E. Wilson. A. G. Kellam waived service, and T. E. Wilson answered. Judgment was entered for plaintiff against all the defendants. W. C. and H. C. Kellam not having appeared, judgment by default was rendered against them. Execution was issued and levied on property of H. C. Kellam, who sued out this writ of error, filing a super-sedeas bond, and the cause is here for review.

The complaint of plaintiff in error, in effect, is that no proper service of citation was had upon him,.and, he not having answered, the court erred in rendering judgment against him. The return of the officer serving said citation is:

“Came to hand on the 20th day of February, A. D. 1914, at 10 o’clock a. m. and executed on the 5th day of March, 1914, at-o’clock p. m. by delivering to W. C. Kellam and H. C. Kellam, two of the within named defendants, in, person a true copy of this writ.”

This return is fatally defective in failing to show that each of the two Kellams was served with copies of the citation, and was not such as to authorize a judgment against them by default. King v. Goodson, 42 Tex. 152; Holliday v. Steele, 65 Tex. 388; Russell v. Butler, 71 S. W. 395.

The judgment is reversed, and cause remanded.

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185 S.W. 988, 1916 Tex. App. LEXIS 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellam-v-trail-texapp-1916.

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