Shook v. Laufer
| Decision Date | 21 December 1904 |
| Citation | 84 S.W. 277 |
| Parties | SHOOK et ux. v. LAUFER et al. |
| Court | Texas Court of Appeals |
Action by Lavinia Powell and others against Charles Laufer, Jr., and others, J. W. Shook and wife impleaded. From a judgment for plaintiffs, Shook and wife bring error. Reversed.
McLean & Spears, for plaintiffs in error.
In this suit in the court below Mrs. Lavinia Powell and others brought suit of trespass to try title to certain lands against Charles Laufer, Jr., Louis Eilers, A. J. Eilers, and others, and in said suit the said Charles Laufer, Jr., Louis Eilers, and A. J. Eilers impleaded plaintiff in error J. W. Shook upon his warranty of title to a part of the land sued for, and upon a trial of said cause in the court below recovered a judgment by default against him, and also against his coplaintiff in error, Mrs. Abigail Shook, his wife. Plaintiffs in error contend that this judgment by default was unauthorized as to plaintiff in error J. W. Shook, because there was no citation issued or served upon him in said cause, and that he did not waive service of same, nor make his appearance in said cause; and as to plaintiff in error Abigail Shook, because she was neither made a party to the suit nor was there any citation issued or served upon her in said cause. It appears from the record that the original petition of plaintiffs in said cause was filed on the 29th day of March, 1901, and their amended original petition was filed on the 25th day of April, 1901, in which were named as defendants, among others, Charles Laufer, Jr., Louis Eilers, and A. J. Eilers, as independent executors of the estate of Louis Eilers, deceased. Plaintiffs in error herein were not named in said pleadings as parties plaintiff or defendant. By their original answer, filed on the 1st day of June, 1901, the defendants in error herein, defendants in said cause in the court below, alleged that certain of the lands mentioned in the plaintiffs' petition had been conveyed to said defendants in error by plaintiff in error J. W. Shook and his wife, Abigail Shook, and asked that said J. W. Shook be made a party defendant on his warranty, that he be cited, and prayed for judgment against him on his said warranty. A citation was issued for and served upon G. W. Shook. The record does not show service of citation upon either of the plaintiffs in error, nor waiver thereof or appearance by either. On the 18th day of...
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