Sam v. Hochstadler Bros.

13 S.W. 535, 76 Tex. 162, 1890 Tex. LEXIS 1228

• Court: Texas Supreme Court
• Decided: March 18, 1890
• Docket: No. 2855
• Status: Published

Opinion

COLLABD, Judge.

When this ease was before the court on former appeal the only question then presented and discussed was the one of attachment and jurisdiction obtained by the levy and seizure thereunder. The attachment failing, it was held that the jurisdiction depending thereon failed, and the cause was reversed and remanded.

It now appears that defendants below appeared by motion to quash the service on them made in New York, at the October Term of the court, 1887; that the motion was heard and sustained by the court, and the cause continued, and defendants allowed until the next term to answer; that at the March Term, 1888, the defendants answered by demurrers and general denial, when they continued the cause. At the October Term, 1888, there was judgment for plaintiff for $600, when it was appealed and reversed because, as before stated, the attachment failed.

Now other questions are presented by the record, and it is claimed that defendants having appeared to quash the service were in court for all purposes, at least at the next succeeding term of the court thereafter.

The court below took the opposite view of the case, and dismissed the case upon refusal of plaintiff to continue for service.

The point raised has recently been decided by the Supreme Court, holding that under such circumstances the defendants, under article 1243 oi the Bevised Statutes, are deemed to have appeared at the next term of the court after the motion to quash service was sustained. York v. The State, 73 Texas, 652.

This question was not involved in the former appeal and was not decided. The law is settled against appellee, and the judgment of the court below should be reversed and the cause remanded.

Reversed and remanded.

Adopted March 18, 1890.