Fernandez v. Casey

• Decision Date: 27 May 1890
• Citation: 14 S.W. 149
• Parties: FERNANDEZ v. CASEY <I>et al.</I>
• Court: Texas Supreme Court

14 S.W. 149

FERNANDEZ v. CASEY et al.

Supreme Court of Texas.

May 27, 1890.

Appeal from district court, Comanche county.

Lindsey & Hutchison, for appellant.

HENRY, J.

Fernandez & Ackerman were, in the year 1881, citizens of Texas residing in the county of Comanche, and were partners. The firm was indebted to Casey & Swasey, a firm residing at Fort Worth, in this state. The firm of Fernandez & Ackerman discontinued business, and both partners left said county for the purpose of seeking a home in some other state. Ackerman settled in Colorado. Fernandez traveled in other states for a few months, without making his domicile in any of them, and at the expiration of about six months returned to Texas, and established his residence in El Paso. Shortly after the dissolution of their partnership, Casey & Swasey sued Fernandez & Ackerman in a justice's court of Comanche county, and obtained a judgment against the firm. An execution was subsequently issued upon this judgment, against S. C. Fernandez, and levied upon real estate situated in the city of El Paso, owned by him individually. He brought this suit to enjoin the sale of the property. The cause was tried without a jury, and on the 19th day of August, 1887, a judgment was rendered in favor of Casey & Swasey, and against Fernandez and the sureties upon his injunction bond, for the recovery of $164.15, and dissolving the injunction. Appellant contends that the judgment in the justice's court is a nullity, because the defendants were never served with process.

The evidence on this subject substantially shows that neither Fernandez nor Ackerman were ever personally served with process, and that no appearance for either of them was ever made in the case in the justice's court. The transcript from the justice's court reads as follows: "No. 201. Casey & Swasey v. Fernandez & Ackerman. Suit on account for $109.70, of date Dec'r 13th & 14th, A. D. 1880, and January 5th, 1881. Filed on the 4th day of February, A. D. 1881. Citation issued February 9th, 1881, and February 10th, for Samuel Fernandez, and Feb'y 11th, 1881, for J. H. Ackerman. February 28, 1881, the above cause continued for service, and citations issued for the defendants Fernandez & Ackerman by publication, returnable to the March term, 1881. March 28th, 1881, the foregoing and above-entitled cause continued to perfect service. April 25th, 1881, judgment by default. It is therefore ordered that the plaintiffs, Casey & Swasey, recover of the...