Beavers v. Butler , 30 Tex. 24 ( 1867 )

Coke, J.

The petition for writ of error alleges the residence of defendant in error to be in Galveston county. The writ of error is directed to the sheriff of Houston county, and commands Mm to make service on the defendant in error, if to be found in that county, and if he cannot be found, then to serve it on Taylor & Moore, his attorneys of record. The return of the sheriff shows the service to have been ma,de on Taylor & Moore, the attorneys of record, without saying whether or not the defendant in error could be found.

Article 793, Hartley’s Digest, .reads as follows: “The clerks of the several district courts shall grant writs of error upon any final judgment, order, or decree rendered in their court, upon the petition of any party interested. Upon the filing of any such petition, the clerk shall issue a citation, directed to the sheriff of the county where the opposite party is alleged to reside,” &c. The same article provides, that when the defendant in error is a non-resident of the State, or cannot be found, service of the writ of error may be made on the attorney of record. The defendant in error in this case is alleged to reside in Galveston county, and to the sheriff of that county the writ of error should have been directed. The act of the clerk in issuing it to the sheriff of Houston county is unauthor- - ized by the statute, which plainly and imperatively requires him to look to the petition to ascertain the residence of the defendant in error, and to direct the writ of error to the sheriff of the county in which he is then alleged to reside. If the writ had been directed to the sheriff of Galveston county, and the defendant could not have been found, then service on his attorney of record would have been proper; but it would defeat the manifest intention of the statute, which requires that the defendant in person shall-be notified of the proceeding, if he is in the state or can be found, to allow the writ issued to a county other than that of his residence, where he could not be expected to be found, and because not found there, to hold service on his attorney of record good. The transcript is filed in this court by the defendant in error, hut this does not remedy the want of proper service on him.

In Mills v. Bagby, 4 Tex., 323, it was held by this court, that “The plaintiff in error has no right to the record or transcript until after service of the citation on the opposite party, and if the defendant were permitted to take a transcript before such service and present it to this court, and have the judgment affirmed, it would preclude the plaintiff from an opportunity of having his rights inquired into in this court, as he has no right to the transcript until citation is returned into the clerk’s office executed.” The statute does not authorize the clerk to make out the transcript until the return of the writ executed. (Paschal’s Dig., Art. 1495.) The error in the issuance of the writ in this case was committed by the clerk, and the plaintiff in error is without fault. It was held in Holloman v. Middleton, 23 Tex., 539, that this court does not acquire jurisdiction of the cause until after service of the writ of error. The plaintiff in error is presumed to know that no proper service of the writ of error has been made in this case, and for aught that we know to the contrary, may, without any knowledge that the transcript has been brought here, be taking steps to have a writ of error properly executed on the defendant in error.

Because there has been no service of the writ of error in this case, it must, in accordance with the long-settled practice of this court, be stricken from the docket at the cost of the party filing the transcript.

Ordered accordingly.