Willie v. Thomas
| Decision Date | 01 January 1858 |
| Citation | 22 Tex. 175 |
| Parties | JAMES WILLIE AND OTHERS v. JOSEPH M. THOMAS AND OTHERS. |
| Court | Texas Supreme Court |
A return on a citation, by the sheriff, that he “executed the same by serving James Willie with a true copy of this writ, together with a certified copy of the accompanying petition,” is not sufficient; and judgment rendered by default thereon, held to be erroneous, and reversed. Ante, 130.
Where several defendants, against whom judgment has been rendered, on a joint and several promissory note, prosecute a writ of error, and one fails to join in the writ of error, a reversal as to either, will operate as a reversal as to all. 4 Tex. 49;11 Tex. 367;28 Tex. 117.
ERROR from Washington. Tried below before the Hon. R. E. B. Baylor.
Suit by defendants in error, against the plaintiffs in error, on a joint and several promissory note. Return of service of citation, as to two of the defendants, James Willie and A. H. Willie, as follows: “Came to hand July 31st, 1857, and executed the same day, by serving James Willie with a true copy of this writ, together with a certified copy of the accompanying petition.
A. G. WIER, Sheriff, T. Co.
by J. W. BLACKWELL, Deputy.”
The return of the citation as to A. H. Willie, was precisely similar to the above, except as to the name of A. H. Willie in the place of James Willie.
Judgment by default was rendered against all the defendants. Writ of error prosecuted by all the defendants, except the defendant, A. H. Willie. Plaintiffs in error assigned for error, that the defendants in the court below, were not properly served with the citation.
Horton and Ewing, for plaintiffs in error, cited Underhill v. Locket, 20 Tex. 130;Roberts v. Stockslager, 4 Id. 307;Burleson v. Henderson, Id. 49; and Wood v. Smith, 11 Id. 367.J. D. and D. C. Giddings, for defendants in error, suggested delay.
The record does not show proper service of the citations to James Willie and A. H. Willie, two of the defendants in the court below. The return of the sheriff, on the citations to those defendants, was to the effect that he had served them with writ, etc. We have, at the present term, held such returns to be insufficient. Graves v. Robertson, ante, p. 130.
A. H. Willie does not prosecute the writ of error; but the reversal of the judgment, as to one of the defendants, will operate as a reversal as to all. Burleson v. Henderson, 4 Tex. 49;Wood v. Smith, 11 Id. 367.
The judgment is reversed, and remanded for proper service on ...
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...and equally affected by the same decree or judgment, the judgment of reversal will operate in favor of all the defendants. Willie v. Thomas, 22 Tex. 175;Walker v. Page, 21 Grat. [Va.] 636;Tod v. Stambaugh, 37 Ohio St. 469. The adjudication by this court was that, under the allegations of th......
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