
    STAYTON v. LEPP.
    No. 2378.
    Court of Civil Appeals of Texas. El Paso.
    July 3, 1930.
    Geo. K. Stayton, of Pyote, and R. L. Holli-day, of El Paso, for plaintiff in error.
    John B. Howard, of El Paso, and J. D. ICugle, of Dallas, for defendant in error.
   WALTHALL, J.

, On May 2, 1927, appellant filed this suit in the district court of Ward county against Henry Lepp, a nonresident, asking that he have judgment on specific performance of a contract of date February 17,1927, conveying and vesting in him an oil and gas lease to certain lands dn Ward county.

On January 7, and on January 12,1929, other parties intervened in said suit; one inter-vener alleging, among other things, that Lepp, in August, 1926, sold to intervener the lands involved in the suit; other interveners alleging a purchase by them from the grantees of Lepp of the lands involved in the suit and that they are the owners of said lands.

- On January 24,1929, the ease was tried before the court without a jury, as between appellant and interveners. The judgment recites that Lepp is a nonresident, and has not appeared and answered, and that as to Lepp the court has no jurisdiction over his person, that the action is in personam and not in rem, and “ordered, adjudged and decreed by the Court that this cause of action be in all things dismissed and the samd is hereby dismissed,” from which order appellant excepted and in open court gave notice and prosecutes this appeal by writ of error. •

■ A petition for writ of error was filed in the district court of Wford county on July 8, 1929. A writ of error bond was filed with the clerk of the district court of Ward county on July 13, 1929. Citation in error directed to the sheriff or any constable of El Paso county, commanding him to summon John B. Howard, in his capacity as attorney of record for Henry Lepp', and commanding him “to be and appear at the next regular term of the District Court in Barstow, Texas, on September 30th, 1929, to answer plaintiff’s petition for writ of error, wherein Geo. K. Stayton is plaintiff and Henry Lepp, Walter Barnes, C. C. Dorr and J. D. Kugle, attorney of record for C. C. Dorr and Walter Barnes, and John B. Howard as attorney of record for Henry Lepp, are defendants,” giving the file number of the suit, stating the nature of plaintiff’s demand, and directing the officer to deliver to John B. Howard a true copy of the citation and accompanying certified copy of plaintiffs petition, and to have the return thereon as directed.

The return shows to have been served on John B. Howard and returned on September 3, 1929. No citation or service on tlie inter-veners or their attorneys is shown by the record.

The transcript was filed in this court on September 23, 1929.

No citation in error, such as the statute, article 2260, R. O. S., directs to be issued, is shown by the record.

This case has several times been set down for submission, and each time the submission continued at the request of plaintiff in error. No appearance of any of the defendants in error, or statement of facts, briefs, or bills of exception to the opinion of the trial judge, or any error of law assigned or apparent upon the face of the record, is disclosed.

It is apparent from the record that jurisdiction has never attached in this court.

The case is dismissed, with costs against plaintiff in error.

HIGGINS, J., did not sit in this case.  