Bendy v. James Boyce & Co.
Bendy v. James Boyce & Co.
Opinion of the Court
The citations in each of these causes are defective in not containing the names of all the defendants. (Johnson v. Brown, 16 Texas, 554; Battle v. Eddy, 31 Texas, 368; Portwood v. Wilburn, 33 Texas, 715.) And the plaintiff below could not cure the defect by dismissing as to one of the parties. The return of the sheriff, that he “ Executed by serv “ ing H. B. Bendy with a copy, etc.,” is not a compliance with the requirements of the statute. (Thomason v. Bishop, 24 Texas, 302; Willie v. Thomas, 22 Texas, 175; Graves v. Robertson, 22 Texas, 130.) Under the defective citation and defective service, judgment was taken by default in each cause, and the defendant Bendy has sued out writs of error. For the defects in the citations and the sheriff’s return, the court below had no such jurisdiction of the person of the plaintiff in error, as would authorize a judgment by default. The judgment in each case is .therefore reversed, and the causes remanded.
Reversed and remanded.
Reference
- Full Case Name
- N. B. Bendy v. James Boyce & Co. N. B. Bendy v. G. W. Garnett & Co.
- Cited By
- 1 case
- Status
- Published
- Syllabus
- In an action against two parties jointly, separate citations were issued against each, and the citations did not contain the names of both of the defendants ; one of them was returned with the foil owing indorsement: “ Exe- “ cuted by serving N. B. with a copy of this writ and the accompanying “copy of plaintiffs petition.” Seld, that both the citation and return were fatally defective—the citation, in not containing the names of all the parties to the suit, and the return, in not complying with Article 5121, Paschal’s Digest, regulating the manner of making service and return; and therefore the court below had no such jurisdiction as to authorize a judgment by default; and this defect is not cured by the dismissal as to the other party in the court below.