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185 S.W. 988

Kellam v. Trail

Court of Appeals of Texas

Decided April 29, 1916

Court of Appeals of Texas · decided 1916-04-29

<p>Judgment <§=>17(10) — Process <§=>134^-Re-turn —Form and Requisites — Personal Service. -</p> <p>Return of service of citation, showing the time of service and date, and that it was served by delivering to two of the defendants “in person a true copy,” is fatally defective in failing to show that each of such defendants received a copy, and would not support a default judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31; Dec. Dig. <§=>17(10); Process, Cent. Dig. §§ 164r-169, 176; Dec. Dig. <§=>134.]</p>

Relies on King v. Goodson · 31 Tex. Civ. App. 76 - Hughey v. Mosby · Holliday v. Steele

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1916-04-29

How this case has been cited

Cited by 5 later decisions — most recently July 1951

5 state decisions

2019161920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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RAINEY, C. J.

¶1 This suit was instituted by defendant in error in the county court of Kaufman county, to recover on a promissory note against A. G., W. C., and H. C. Kel-lam and T. E. Wilson. A. G. Kellam waived service, and T. E. Wilson answered. Judgment was entered for plaintiff against all the defendants. W. C. and H. C. Kellam not having appeared, judgment by default was rendered against them. Execution was issued and levied on property of H. C. Kellam, who sued out this writ of error, filing a super-sedeas bond, and the cause is here for review.

¶2 The complaint of plaintiff in error, in effect, is that no proper service of citation was had upon him,.and, he not having answered, the court erred in rendering judgment against him. The return of the officer serving said citation is:

“Came to hand on the 20th day of February, A. D. 1914, at 10 o’clock a. m. and executed on the 5th day of March, 1914, at-o’clock p. m. by delivering to W. C. Kellam and H. C. Kellam, two of the within named defendants, in, person a true copy of this writ.”

¶3 This return is fatally defective in failing to show that each of the two Kellams was served with copies of the citation, and was not such as to authorize a judgment against them by default. King v. Goodson, 42 Tex. 152; Holliday v. Steele, 65 Tex. 388; Russell v. Butler, 71 S. W. 395.

¶4 The judgment is reversed, and cause remanded.

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