Witt v. Kaufman & Kleaver

25 Tex. 384

• Court: Texas Supreme Court
• Decided: October 15, 1860
• Status: Published

Opinion

Wheeler, 0. J.

—There was no legal service upon the defendant to appear and answer to the suit "before the justice. A citation, directed to an officer of Dallas county to execute,-was no authority to the sheriff of Parker county to execute the process. Service of the 'process by him was, in contemplation of law, no service. The court, therefore, had not jurisdiction of the person of the defendant, and the judgment was consequently void. The defendant, therefore, was entitled to have it so declared, and the proceedings under it enjoined. But the court having obtained cognizance of the case for one purpose, would retain it for • the further purpose of doing full and complete_ justice between the parties, and would give judgment for the plaintiff upon the cause of action on which the judgment of the justice was rendered, if, upon the merits, the .plaintiff was entitled to judgment. Such is the practice as settled by the decisions of this court. (Edrington v. Allsbrooks, 21 Tex., 186; Willis v. Gordon, 22 Tex., 241.)

We are of opinion that the court erred in dismissing the petition, for which the judgment must be

Reversed and the cause remanded.