Jolly v. Brown

HUFF, C. J. The defendants in error Brown, Shelton and wife, R. E. Sparks, and M. J. Sparks, file a motion to dismiss the writ of error herein, on the ground, among other things, that there was no service had on T. N. Sparks and J. D. and Mattie Woods. J. J. Brown instituted in the district court of Foard county, Tex., a suit to enjoin W. L. Powers, P. O. Williams, and-Williams, from trespassing on certain lands on April 24, 1914. On November 12th thereafter the above-named defendants filed their amended answer in lieu of the answer theretofore filed. On November 13th W. L. Jolly filed his amended plea of intervention, in lieu of this plea theretofore filed, the date of which filing is not given, setting up that he had purchased the land during the pendency of the suit, adopting the answers of the defendants in the original suit, and setting out other matters. October 20, 1914, T. N.' Sparks, J. F. Sparks, R. E. Sparks, M. J. Sparks, Minnie Shelton, joined by her husband, J. W. Shelton, and Mattie Woods, joined by her husband, J. D. Woods, filed also a plea of intervention, attacking the rights of the defendants in the original suit, and that of the in-tervener W. L. Jolly. It appears from the judgment Brown, who brought the suit, recovered $1, nominal damages against the original defendants, and obtained the decree perpetuating the injunction against defendant and intervener, and'also that Jolly recovered nothing. T. N. Sparks and the others named in their plea of intervention recovered the land from W. L. Jolly, the plaintiff in error herein. This judgment was rendered April 3, 1915. [1,2] Jolly filed his petition for writ of error against all parties, together with his bond therefor, April 3, 1916. Citation was issued on that day, which was served on all parties April 7, 1916, except Mattie Woods, J. D. Woods, W. L, Powers, P. O. Williams, and R. T. Williams, not found in Foard county, according to the return of the sheriff. T. M. Parks, deceased, also returned not found. On April 17, 1916, alias citation was issued, commanding the sheriff to summon T. N. ' Sparks, Mattie Woods, and her husband, J. D. Woods, by making service upon G. W. Walthall, their attorney of record, and M. L. Powers, P. O. Williams, by making service on R. P. Brindley, their attorney of record. The return of the sheriff thereon shows service on G. W. Walthall, attorney of record for Sparks, Woods, and wife, on April 17, 1916, and R. P. t Brindley, attorney of record for Powers and the two Williams, on the same day. On June 15, 1916, plaintiff in error filed a supplemental petition for writ of error brought up by a supplemental transcript, setting out the fact that T. N. Sparks was attending court at Crowell, Foard county, on the 3d day of April, 1916, wherein the petition and bond for writ of error were filed. The citation was issued and delivered to the sheriff on that day, who did not get service on Sparks, and that on the 4th day of April, 1916, T. N. Sparks was killed in an affray; that he died intestate, leaving four children, who were named; that his brother, R. E. Sparks, was appointed guardian of the person and estate of the children; that the children were the heirs, and the only heirs, of T. E. Sparks. Citation was issued thereupon to Foard county to serve the children and the guardian, R. E. Sparks, who was alleged therein to be temporarily in Foard county. Citation was issued on the 16th and served on the same day on the children, the sheriff returning that R. E. Sparks was not found in the county. Alias citation was issued June 19, 1916, to Tarrant county, Tex., to serve R. E. Sparks as guardian; the petition having alleged that county as his place of residence. This was served on him June 27, 1916. The original transcript was filed in this court July 2 and the supplemental July 5, 1916. It appears from the record that G. W. Walt-hall was the attorney of record for Mattie and J. D. AVoods, and that they were not found in the county. Service on the attorney was sufficient in this case. Article, 2095, R. C. S. The jurisdiction of the appellate court attached upon the filing of the petition and *973 bond for writ of error. Article 2099, R. O.' S. It appears that there is no statutory provision for service where after the petition and bond are filed and before service is had the defendant therein dies. It would seem to be a just rule after the jurisdiction of the appellate court attaches that service on the heirs should be sufficient where it is shown there is no necessity for administration. This is the holding in the case of Binyon v. Smith, 50 Tex. Civ. App. 398, 112 S. W. 138. We believe that plaintiff in error has complied with the rule there announced. The defendants’ other two grounds cannot properly be considered on this motion, but should be presented on consideration of the merits of the appeal. The motion to dismiss is overruled. Footnotes [1] (Sswi’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes