R. E. Sweeney v. W. Fischer

WALTHALL, J. Richard W. Fischer, defendant in error, on the 27th of August, 1923, sued Ira Nourse and plaintiff in error, R. E. Sweeney, a copartnership, on a debt in the isum of $250, and on September 20, 1923, recovered a judgment by default against defendant in error in the sum of $100 and interest thereon at the rate of 6 per cent, per annum from November 1, 1922, and all costs of suit, from which judgment this appeal is prosecuted. The following facts are made to appear from the record: The petition in the suit of Fischer against Nourse & Sweeney, a copartnership, was filed on the 27th day of August, 1923, and on the same day citation was issued and made returnable to the following 'September term of the court which convened on September 10th. Service of citation was had on Sweeney on September 5th, and judgment by default was rendered against him, individually, on September 20, 1923. On the 14th day of January, 1924, Fischer sued out a writ of garnishment in said suit based on said judgment. On the 26th day of February, 1924, plaintiff in error filed his petition for a writ of error, in said .suit, and alleges that the judgment obtained by Fischer against him on the 5th day of September, 1923, is void for want of service to ¡the September term of the court. Article ¡1867, Vernon’s Sayles’ Tex. Civ. Statutes, pro.vides that, in order to compel the defendant to plead to the return term of the court, the citation must be served at least ten days before the first day of such return term, exclusive of the days of service and return. Here only three days intervened, exclusive of the days of service and return. Jackson v. Dowdy (Tex. Civ. App.) 29 S. W. 693; McCaulley v. Western Nat. Bank (Tex. Civ. App.) 173 S. W. 1000. The case is reversed and remanded.