Ayers v. Alamo Lumber Co.

• Decision Date: 30 November 1938
• Docket Number: No. 10382.,10382.
• Parties: AYERS v. ALAMO LUMBER CO.
• Court: Texas Court of Appeals

Page 208

122 S.W.2d 208

AYERS v. ALAMO LUMBER CO.

No. 10382.

Court of Civil Appeals of Texas. San Antonio.

November 30, 1938.

Error from District Court, Forty-Ninth District, Dimmit County; J. F. Mullally, Judge.

Action by K. B. Ayers against the Alamo Lumber Company and another for breach of contract. To review a judgment of the trial court dismissing the action from the docket, the plaintiff brings error.

Cause stricken from docket of the Court of Civil Appeals.

John T. Spann, of Crystal City, for plaintiff in error.

Johnson & Long, of Carrizo Springs, for defendant in error.

SMITH, Chief Justice.

This action was brought by K. B. Ayers against Alamo Lumber Company and C. C. Caperton to recover damages of them, jointly, for breach of contract. The suit was brought in the District Court of Dimmit County, and upon sustaining the Lumber Company's plea in abatement of the action, on the ground of the pendency of a like suit in a county court at law of Bexar County, the trial court dismissed this action from the Dimmit docket.

Ayers filed his petition in error in the trial court against both defendants, the Lumber Company and Caperton, and likewise filed bond in error, naming both the Lumber Company and Caperton as obligees. He also had citation in error issued to and served upon defendant in error Alamo Lumber Company. But plaintiff in error failed to have citation issue to or served upon the other defendant, Caperton, and has presented the record in that condition to this court for decision on the merits, in the regular course of submission.

This Court can acquire no jurisdiction of a cause brought up on writ of error unless and until it is made to appear here, affirmatively, that each defendant in error has been duly served with citation in error, or has waived such service, expressly or by his conduct. No such showing has been made in this cause; the contrary is apparent from the record. Art. 2261, R.S.1925; 3 Tex.Jur. page 358, § 253; Barnard v. Tarleton, 57 Tex. 402; Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; Adams v. Bida, 125 Tex. 458, 84 S.W.2d 693; Scarborough v. Groesbeck, Tex.Civ.App., 25 S.W. 687; Irvin v. Auto Finance Co., Tex.Civ.App., 34 S.W.2d 672; Earnest v. Couch, Tex.Civ.App., 71 S.W.2d 547; Travis Ref. Co. v. Osage Oil Co., Tex.Civ. App., 262 S.W. 114; Moody-Seagraves Ranch v. Brown, Tex.Civ.App., 59 S.W.2d 431; Guyer v. Prince, Tex.Civ.App., 106 S.W.2d 1091; Austin v. First State Bank & Trust Co., Tex.Civ.App., 260...