Holloman v. Middleton
Texas Supreme Court
Error from Jasper. Tried below before the Hon. A. W. O. Hicks. This was a suit, instituted by Eliza Carroll, then a citizen of Tyler county, in the State of Texas, against the plaintiffs in error. Before the trial, the plaintiff departed this life, and Samuel W. Mellen became the administrator of her estate, and made himself a party plaintiff to the suit; and judgment was rendered in his favor, as such administrator.
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Error from Jasper. Tried below before the Hon. A. W. O. Hicks. This was a suit, instituted by Eliza Carroll, then a citizen of Tyler county, in the State of Texas, against the plaintiffs in error. Before the trial, the plaintiff departed this life, and Samuel W. Mellen became the administrator of her estate, and made himself a party plaintiff to the suit; and judgment was rendered in his favor, as such administrator. Within the period of two years, thereafter, the plaintiffs in error filed their petition for a writ of error to the Supreme Court, in which they alleged, that Mellen had removed…
1Opinion of the CourtWheeler, C. J.
The statute authorises service of the citation in error, on the attorney of record, when the defendant in error is a non-resident of the state, or cannot be found. (Hart. Dig., Art. 793.) Here the defendantin error was aresident of the county. Service on the attorney, therefore, was unauthorised. Motions to dismiss the writ of error upon this ground have been sustained. (3 Texas Rep. 511; 10 Id. 270, 290.)
The court has not had occasion to consider the effect of their sustaining the motion. But where it is for the want of service of the writ or citation, we suppose it has not been understood,…
2Cases cited1 opinion
- Republic of Texas v. ThornTexas Supreme Court · 1848
3Cited by7 opinions
- United Employers Casualty Co. v. SkinnerCourt of Appeals of Texas · 1940
- Cravens v. WilsonTexas Supreme Court · 1877
- Simmons v. FisherTexas Supreme Court · 1876
- Wilson v. John I. Adams & Co.Texas Supreme Court · 1878
- Cruz v. StateCourt of Criminal Appeals of Texas · 1914
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