Llano Improvement Co. v. Watkins

COLLAR!), Associate Justice. This appeal is from a judgment by default against appellant upon service as shown by the return of the officer: “ Came to hand the 24th day of September, A. D. 1891, at 12 o’clock a. m., and executed the 24th day of-, A. D. 189—, by delivering to S. Duncan, secretary of the Llano Improvement and Furnace Company, the within named defendant, in person, a true copy of this writ.” The date of sevice is impossible. The return is fatally defective, and can not support the judgment. Rev. Stats., art. 1225. There was no appearance by defendant. Defendant excepted to the judgment, and gave notice of appeal, but this can not be held to be appearance or waiver of service. The court, upon such return, had no authority to render the judgment; and for this error it must be reversed. The note sued on called for 12 per cent interest, and 10 per cent on principal and interest as attorney fees if placed in the hands of an attorney for collection. The court gave judgment for amount due on the note, principal and interest, and 10 per cent thereon as attorney fees, the whole judgment to bear 12 per cent interest from date. It was not eror to allow the contract rate of interest on the whole amount of the judgment. Rev. Stats., art. 2980; Washington v. Bank, 64 Texas, 4. It is ordered, that the judgment of the court below be reversed and the cause remanded. Reversed and remanded.