Glasscock v. Barnard
| Decision Date | 01 January 1910 |
| Parties | GLASSCOCK v. BARNARD et al. |
| Court | Texas Court of Appeals |
Action by A. J. Barnard against Lee Glasscock and another. Judgment for plaintiff, and defendant Glasscock brings error. Reversed and remanded.
Crane & Myers, for plaintiff in error. W. W. Kirk and H. C. Hughes, for defendants in error.
This is an action by A. J. Barnard against J. L. Harris and Lee Glasscock to recover on certain promissory notes and to foreclose the vendor's lien on a quarter section of land in Kent county. There was a judgment by default against both defendants, from which this writ of error is prosecuted.
Aside from a consideration of any of the questions raised in plaintiff in error's brief, we are confronted with the fact that no citation appears in the record, and, in this state of the case, it does not appear that the court had jurisdiction to render any judgment whatever in favor of the plaintiff. Mayhew & Co. v. Harrell, No. 6,190 () 122 S. W. 957, and authorities there cited; Wheeler v. Phillips, 22 S. W. 543. Nor is the case helped by the recitation in the judgment that each of the defendants had been duly served with citation in accordance with the law. Blossman v. Letchford, 17 Tex. 647; Burditt v. Howth, 45 Tex. 466; Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697; Shook v. Laufer, 84 S. W. 277. While this omission is not specifically made the basis of an assignment of error, we nevertheless hold it to be such error apparent of record as to be fundamentally erroneous, for the record should in all cases show affirmatively that the trial court had jurisdiction over the subject-matter and parties, and where, as here, the record shows there was no appearance or waiver, it should contain a copy of the citation duly served on the defendants. Sayles' Ann. Civ. St. 1897, arts. 1411, 1412; McMickle v. Texarkana National Bank, 4 Tex. Civ. App. 210, 23 S. W. 428; Chrisman v. Graham, 51 Tex. 454; Lane v. Doak, 48 Tex. 227; Mawthe v. Crozier, 50 Tex. 153. This holding is analogous to the holding in American Soda Fountain Company v. Mason, 119 S. W. 714, and the line of authorities therein cited, to the effect that no presumptions are to be indulged in aid of the trial court's jurisdiction, but the same must be made affirmatively to appear. In that case and those cited the appeal was from a judgment of the county court where the...
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Doak v. Biggs
...Mayhew v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Bomar v. Morris, 59 Tex. Civ. App. 378, 126 S. W. 663; Glascock v. Barnard, 58 Tex. Civ. App. 369, 125 S. W. 615; Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697; Shook v. Laufer, 84 S. W. The only evidence of notice contained i......
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...Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 698; Mayhew v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Glasscock v. Barnard, 58 Tex. Civ. App. 369, 125 S. W. 615. It is also urged that, the issue of sufficiency of the service having been presented to the trial court on motion for n......
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