
    SCOTT et al. v. RAY.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1911.)
    
    Process (§ 134) — Return—Sufficiency— Statutory Provisions.
    Rev. St. 1895, art. 1218, requires that citation shall be served by delivering to the defendant, in person, or to each of them if there be more than one, a true copy of 'the citation. The return on a citation was that it had been “executed * * * by delivering to Jennie Scott and J. G. Scott, * * * the within named defendant in person, a true copy of this writ.” Held, that as the return failed to show which one, if either, of the two defendants named, was served, it was tantamount to a service on neither of them, and insufficient.’
    [Ed. Note. — Por other cases, see Process, Dec. Dig. § 134.]
    Error from District Court, Lynn County; Jas. R. Robinson, Judge.
    Action by Martha I. Ray against Jennie Scott and others. Judgment for plaintiff, .and defendant Scott and another bring error.
    Reversed and remanded.
    H. C. Perguson, for plaintiffs in error. J. P. Marrs and G. E. Lockhart, for defendant in ■error.
    
      
       Filed in the Court of Civil Appeals at Ft. Worth March 13, 1911, and transferred to this court July 1, 1911, by order of the Supreme Court.
    
    
      
       For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRESLER, J.

Defendants in error brought this suit against appellants in error, Jennie Scott, J. G. Scott, and T. N. Bartley, and •recovered judgment against all of the defendants named on the note sued on for principal, interest, and attorney’s fees. The judgment rendered as against plaintiffs in error Jennie Scott and J. G. Scott being by default, from this judgment plaintiffs in error appeal and here ask that said judgment be reversed because the record fails to show ■proper service of the citation. The sheriff’s return upon the citation in question is .as follows: “Sheriff’s Return. Came to hand the 17th day of August, A. D. 1910, at 5 ■o’clock p. m. and executed on the 17th day ■of August, A. D. 1910, at 6 o’clock p. m., by ■delivering to Jennie Scott and J. G. Scott, an Tahoka, the within named defendant in person, a true copy of this writ. J. S. Wells, .'Sheriff, Lynn County, Texas. Pees serving ¡two copies $1.50. Mileage -. Total $1.50.”

The statute (article 1218, R. S.) requires ithat, “unless the process shall otherwise direct, the citation shall be served if within ¡the county in which suit is pending, by the ■officer executing it, delivering to the defend.ant, or if there be more than one, then to .each defendant, in person, a true copy of the •citation.” This return is insufficient to show’ -service upon each of the defendants in person of a true copy of the writ and is almost ■identical with the service in the case of Russel v. Butler, 71 S. W. 395. See, also, Holliday v. Steele, 65 Tex. 388; King v. Gooderson, 42 Tex. 153. The service in question .-also fails to show which one, if either, of the two defendants named, was served, and is tantamount to a service on neither of said ■defendants.

It is not considered necessary to pass on plaintiff in error’s remaining two assignments, which appear to complain only of matters of calculation in arriving /at the .amount of the judgment rendered, principal, interest, and attorney’s fees, in view of the reversal of this case, because of the error hereinbefore pointed out.

The judgment is therefore reversed, and the cause remanded.  