Walden v. Locke, 764.
| Decision Date | 05 December 1930 |
| Docket Number | No. 764.,764. |
| Citation | 33 S.W.2d 475 |
| Parties | WALDEN et al. v. LOCKE et al. |
| Court | Texas Court of Appeals |
Lockhart, Garrard & Brown, of Lubbock, for plaintiffs in error.
Ritchie & Ritchie, of Mineral Wells, for defendants in error.
The judgment below was rendered against plaintiffs in error by default. The petition of the plaintiffs below (defendants in error here), by virtue of which citation was issued to plaintiffs in error, alleged their residence to be in Andrews county. Citation was directed to the sheriff or any constable of Gaines county. The return was made by the sheriff of Gaines county, showing that the citations were served in that county.
The first proposition of plaintiffs in error presents the question that no legal authority existed for the issuance of citation to Gaines county, and that the service thereof in that county was of no force and effect. This proposition must be sustained.
Massie Drilling Co. v. Nees (Tex. Com. App.) 266 S. W. 504.
To the same effect is the case of Shambeck v. Johnson (Tex. Civ. App.) 281 S. W. 349.
Further discussion of the question by us would serve no purpose. The fact that the amended petition was filed before judgment was taken, in which the residence of plaintiffs in error was correctly stated to be in Gaines county, does not alter the rule, for, as held by the cases above cited, the citation was a nullity for want of authority in the clerk to issue same. This being true, no efficacy was imparted to it by an amended petition filed after it was...
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