Boydstun v. Nugent

HALE, C. J. Tbis suit was filed in tbe district court of Carson county July 29, 1925, by J. S. Nugent, seeking to recover tbe sure of $3,792 alleged to be due as commissions, and is numbered 709 on tbe docket of tbat court. C. L. Upbam, tbe clerk of tbe district court of Carson county, issued a citation and delivered it to tbe sheriff of tbat county, directing bim to serve tbe defendant, B'oydstun. Tbe citation contains tbe following recitals: “You are hereby commanded to summon W. S. Boydstun to be and appear before the honorable district court of Potter county, Tex., at the next regular term thereof to be holden at the court house at Amarillo, Tex., on the fourth Monday in August, 1925, the same being the 24th day of August, 1925, then and there to answer the plaintiff’s petition filed in a suit in said court on the 29th day of July, 1925, wherein J. S. Nugent is plaintiff and W. S. Boydstun is defendant; file number of said suit being 700. “Herein fail not, but have you before said court on the said first day of the next regular term thereof this writ with your return thereon, showing how you executed the same. Witness, C. L. Upham, Clerk of the District Court of Potter County, Tex. Given under my hand and seal of said court at office in Amarillo, Tex., this 29th day of July, 1925. C. L. Upham, Clerk of the District Court, Potter County, Tex.” Tbe citation is indorsed: “No. 709. In the District Court of Potter County, Texas, August Term, 1925. Citation, Potter County, J. S. Nugent v. W. S. Boyd-stun. Issued 29th day of July, 1925. O. L. Upham, District Clerk, Potter County, Texas.” Boydstun entered no appearance, and filed no answer, and on tbe 31st day of August, 1925, judgment was rendered against him in tbe district court of Carson county by default for the- amount sued for. R. S. art. 2022, provides tbat citation shall be directed to tbe sheriff or any constable of tbe county where tbe defendant is alleged to reside or be, and command bim to summon tbe defendant to appear and answer tbe plaintiff’s petition at tbe next regular term of tbe court, stating tbe time and place of bolding tbe same. The place 'of bolding the court stated in tbe citation is Amarillo, Tex-, instead of tbe county seat of Carson county, and for this reason is fatally defective and is insufficient to sustain the judgment by default. It is uniformly held tbat tbis article which prescribes tbe requisites of a citation is mandatory and must be strictly followed in order to confer jurisdiction. Tbe citation is teeming with errors. Upbam was not the district clerk of Potter county, nor should tbe citation have been made returnable to tbe district court of Potter county, because tbe petition was not filed in tbat court as stated in tbe citation. Because of tbe defects in tbe citation, the judgment is reversed and tbe cause remanded. Crenshaw v. Hemple, 60 Tex. Civ. App. 385, 130 S. W. 731. Reversed and remanded.