Gatlin v. Dibrell

• Decision Date: 14 May 1889
• Citation: 11 S.W. 908
• Parties: GATLIN <I>v.</I> DIBRELL.
• Court: Texas Supreme Court

11 S.W. 908

GATLIN

v. DIBRELL.

Supreme Court of Texas.

May 14, 1889.

Commissioners' decision. Appeal from district court, Coleman county.

Woodward & Wilkes, for appellant. Sims & Snodgrass, for appellee.

ACKER, J.

W. C. Dibrell brought this suit in the district court of Coleman county on a joint and several promissory note executed by F. W. Dudley, J. W. Day, and appellant, J. M. Gatlin, who resided in Concho county. Process was regularly issued for each of the defendants, but no return of service was made as to Dudley or Day, and the suit was dismissed as to them. The sheriff of Concho county made the following return of service on the citation against appellant: "Executed the 19th day of February, A. D. 1887, by delivering to J. M. Gatlin, the within named defendant, in person, a true copy of this writ, together with the accompanying certified copy of plaintiff's petition." On the 25th of March, 1887, judgment was rendered by default against appellant. On the 28th day of March, 1887, counsel for appellant filed a motion to set aside the judgment, and for a new trial, which was overruled. The only assignment of error presented is: "The court erred in rendering judgment against this defendant, J. M. Gatlin; he never having been served with citation and copy of plaintiff's petition." The return by the sheriff on the process against appellant was in strict compliance with the requirements of law, and showed perfect service. The motion to set the judgment aside was an attempt to impeach the return. Neither fraud nor mistake was charged. It was simply alleged that appellant had not been served with process, as shown by the return. The motion was not sworn to, nor did appellant testify in support of it. Dudley, one of the defendants, made affidavit, in support of the motion, to the following facts: That he was present at the house of appellant when the officer left the copy of citation and copy of the petition there; that appellant was not there at the time, but came soon after; that the officer delivered the papers to appellant's wife, and went away; that he examined the papers after the officer left, and saw what they were, and immediately left for eastern Texas, to avoid service upon him; that appellant did not look at the papers. No other evidence was offered to contradict the return. The return of the officer imports absolute verity, and was sufficient to authorize the rendition of judgment upon default on the part of appellant, and we think the...