At page 216 Examining defective service of citation and presumption of duty19 citing caseshas brought the case here by writ of error. The sheriff’s return on the citation, issued April 7, 1869, is as follows: “Received in office April 7,1869.…
- Dashinau Cato v. Michelle Y. Smith-Cato, No. 05-22-00068-CV (Tex. App.—Dallas May 26, 2023).publishedSee Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927…
- Ronald Joseph v. Britini Jeavon Jack, 624 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2021).publishedPrimate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (“For well over a century, this court has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for…
- in the Interest of L.R.M., a Child, No. 04-17-00503-CV (Tex. App.—San Antonio June 27, 2018).publishedPrimate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex. 1985); McKanna v. Edgar, 388 S…
- Elishah Sawyers, Pax Crate & Freight, Inc. & Robin Sawyers v. Marc Carter & Sally Carter, No. 01-14-00870-CV (Tex. App.—Houston [1st Dist.] Apr. 8, 2015).publishedWilson v. Dunn, requesting service must amend the return prior to 800 S.W.2d 833, 836 (Tex. 1990); Ulvade Country Club judgment. v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex. 1985); McKanna v. Edgar [**3] , 388 S.W.2d 927 , 929 Opi…
- Monte Montgomery v. Monty Hitchcock, No. 03-14-00643-CV (Tex. App.—Austin Jan. 2, 2015).publishedWilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Ulvade Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Flynt v. Kingsville, 125 Tex. 510 , 82 S.W.2d 934 (1935);…
- Deutsche Bank Trust Co., N. A. A/K/A Deutsche Bank Nat'l Trust Co. v. Kenneth W. Hall & Roberta Hall, 400 S.W.3d 668 (Tex. App.—Texarkana 2013).publishedCo. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex.2009) (per curiam) (quoting Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v…
- Ins. Co. of the State of Pennsylvania v. Lejeune, 297 S.W.3d 254 (Tex. 2009).published“For well over a century, this court has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack.” Primate Constr., Inc. v. Silver…
- In the Interest of Z.J.W., a Child, 185 S.W.3d 905 (Tex. App.—Tyler 2006).publishedSee Silver, 884 S.W.2d at 152 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Flynt v. Kingsville, 12…
- In Re Z.J.W., 185 S.W.3d 905 (Tex. App.—Tyler 2006).publishedSee Silver, 884 S.W.2d at 152 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Flynt v. Kingsville, 12…
- Kenneth Jeiorl Johnson v. Linda S. Johnson, No. 09-03-00537-CV (Tex. App.—Beaumont Nov. 18, 2004).publishedSee, e.g., Uvalde Country Club v. Martin Linen Supply Co. , 690 S.W.2d 884, 886 (Tex.1985) (per curiam); McKanna v. Edgar , 388 S.W.2d 927, 929 (Tex.1965); Sloan v. Batte , 46 Tex. 215, 216 (1876)." Wilson , 800 S.W.2d at 836 .
Show 6 more citing cases
- GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57 (Tex. App.—Fort Worth 2003).publishedPrimate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.196…
- GMR Gymnastics Sales, Inc. v. Michael Walz, No. 02-02-00155-CV (Tex. App.—Fort Worth July 10, 2003).publishedPrimate Constr., Inc. v. Silver , 884 S.W.2d 151, 152 (Tex. 1994); Wilson v. Dunn , 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co. , 690 S.W.2d 884, 885 (Tex. 1985); McKanna v. Edgar , 388 S.W.2d 927, 929 (…
- TAC Americas, Inc. v. Boothe, 94 S.W.3d 315 (Tex. App.—Austin 2002).published “For well over a century, [the Texas Supreme Court] has required that strict compliance with the rules of service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack.” Silver, 884 S.W.2…
- Rundle v. Comm'n for Lawyer Discipline, 1 S.W.3d 209 (Tex. App.—Amarillo 1999).publishedWilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Flynt v. Kingsville, 125 Tex. 510 , 82 S.W.2d 934, 934-35 (19…
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994).publishedWilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Flynt v. Kingsville, 125 Tex. 510 , 82 S.W.2d 934 (1935); Slo…
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1991).publishedSee, e.g., Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex.1985) (per curiam); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Sloan v. Batte, 46 Tex. 215, 216 (1876); see also R.
v.
J. W. Batte
This was a judgment by default, and must be reversed, because there does not appear to have been proper service on defendant W. L. Sloan, who[*216] has brought the case here by writ of error. The sheriff’s return on the citation, issued April 7, 1869, is as follows: “Received in office April 7,1869. Executed on W.L. Sloan by delivering to him in person a certified copy of plaintiff’s petition and true copy of the within citation.”
This return is. manifestly defective in failing to show, as the statute requires, the day when it was executed. (Paschal’s Dig., art. 5121; Williams v. Downes, 30 Tex., 52; Whitaker v. Fitch, 25 Tex. Supp., 309.)
As the judgment by default was not taken until the year 1872, several terms of court after that, to which the citation was returnable, (in fact, the record shows two judgments by default, the last in 1873, and the writ of inquiry was not executed until 1874,) it is contended that the presumption is that the officer did his duty by serving the citation before the return-day, and that such service, though not sufficient to authorize a judgment by default at the return term, would be sufficient for that purpose at any subsequent term. If it appeared with sufficient certainty that the service was had whilst the citation was in force, and consequently that the only defect in the return was that it did not show that service was had full five days before the return-day, the position taken would perhaps be correct. The record, however, does not show that the citation was filed, nor when it was returned. For aught that the record shows to the contrary, the service may have been had after the return-day.
The presumption, that the officer has done his duty, may be urged in- support of a defective return of service; but this court, commencing with the case of Underhill v. Lockett, 20 Tex., 130, has repeatedly indicated that presumption in favor of returns will not be extended beyond former decisions, and that the provisions of the statute must be complied with. (Groves v. Robertson, 22 Tex., 130; Williams v. Downs, 30 Tex., 52; Brown v. Robertson, 28 Tex., 557.)
The judgment is reversed and the cause remanded.
Reversed and remanded.