McLamore v. Heffner

31 Tex. 189

• Court: Texas Supreme Court
• Decided: April 15, 1868
• Status: Published

Opinion

Mobeill, C. J.

—The citation to defendant in error directs the sheriff to summon the defendant in error, and, in case he cannot he' found in the county, then to summon A. W. De Berry, esq., his attorney of record. The citation was served on the attorney of record, and not on defendant in error. The petition contains no allegation of the non-residence of the defendant in the state.

The statute provides that, in case the defendant in error is a non-resident of the state or cannot he found, the citartion may be served on the attorney of record. [Paschal's Dig., Art. 1495, Note 587.]

Before a citation can be served on an attorney of record, the petition therefor should disclose that the defendant is a non-resident or cannot he found. It is not non-residence of a particular county, or the fact that the defendant cannot be found in a particular county, that authorizes service on the attorney of record.

Agreeably to the principles established in the cases of Holloman v. Middleton, 23 Tex., 538, and cases there cited, the service in this case is bad, and does not give this court jurisdiction of the person of defendant in error; therefore the motion of defendant to dismiss the cause from the docket is

.Granted.