Fulshear v. Lawrence

Opinion by White, J. § 631. Suit of non-resident by publication; action in personam and not in rem. Appellant sued appellee in the court below as a non-resident by publication, as is provided by art. 25, Pas. Dig., but did not at the same time ask for or procure a writ of attachment. In other words, the proceeding was not an action in rem. Defendant pleaded to the jurisdiction of the court, and his plea was sustained and the case dismissed, the court following the rule laid down in Herrington v. Williams, 31 Tex. 457. The case of Herrington v. Williams has been expressly overruled by our supreme court, in the case of Wilson v. Zeigler, 44 Tex. 657. The court in this latter case, as we think correctly, held that in a suit by a resident plaintiff against a non-resident, the jurisdiction does not depend upon auxiliary attachment proceedings. Such suit or service by publication may be prosecuted to judgment, which will be valid as against property of the defendant found in the state. [Battle v. Carter, 44 Tex. 485.] Note. — But see § 129, ante, where a contrary rule is announced, founded upon later decisions. Reversed and remanded.