
    WEBSTER v. INTERNATIONAL & G. N. RY. CO.
    (No. 7154.)
    (Court of Civil Appeals of Texas. Galveston.
    March 10, 1916.)
    1. Appeal and Eerob <&wkey;715(2) — Court oe Civil Appeals — Bower to Ascertain Jurisdiction — Statute.
    By direct provision of Vernon’s Say les’ Ann. Civ. St. 1914, art. 1593, the Court of Civil Appeals has power to ascertain by affidavit or otherwise such matters of fact as may be necessary to the proper exercise of its jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2965; Dec. Dig. &wkey;> 715(2).]
    2. Appeal and Error e&wkey;407(l) — Appeal by Writ of Error — Citation.
    A Court of Civil Appeals has no jurisdiction to entertain a writ of error, unless citation in error has been legally served on the defendant in error or service accepted.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2120, 2128, 2129, 2131, 2132; Dec. Dig. <&wkey;407(l).]
    3. Railroads <&wkey;24(2) — Receivers—Service of Process — Agent.
    The agent of the receivers of a railroad corporation under appointment of a court of competent jurisdiction is not the agent of the corporation for service of process, although before the appointment of the receivers he was the agent, and at the time of service of citation upon him he is serving the receivers as agent in the same capacity in which he served the corporation.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 54; Dec. Dig. <&wkey;24(2)J
    Error from District Court, Harris County; Chas. E. Ash, Judge.
    Suit by Lizzie Webster against the International & Great Northern Railway Company. To review a judgment for defendant, plaintiff brings error.
    Writ ordered stricken from the docket.
    James Slyfield, E. H. Vasmer, C. L. Michael, and Guynes & Colgin, all of Houston, for plaintiff in error. Geo. A. Hill, Jr., of Houston, amicus curise.
   McMEANS, J.

Daniel Webster and his wife, Lizzie Webster, brought this suit against the International & Great Northern Railway Company for the recovery of the title and possession of a tract of land in Harris county. Pending a trial Daniel Webster died, and Lizzie Webster was authorized by the court to prosecute the suit in her own name and right. A trial resulted in an instructed verdict for defendant, upon which a judgment in its favor was duly entered. Plaintiff did not perfect an appeal from the judgment, but seeks to have several alleged errors of the trial court reviewed by writ of error to tbis court.

George A. Hill, Esq., a practicing attorney of tbe Harris county bar, as amicus eurise, bas, by an instrument filed in tbis court, suggested tbe want of jurisdiction of tbis court to determine tbe questions presented, for tbe reason that tbe citation in error bas not been served upon tbe defendant.

It appears from tbe record that tbe plaintiff filed her petition for a writ of error in the district court on May 3, 1915, and that citation in error to defendant was issued on May 4, 1915, and that on May 7, 1915, tbe writ was served on S. B. Mobley by tbe sheriff of Harris county. The sheriff’s return indorsed upon tbe writ is as follows:

“Game to band on the 4th day of May, 1915, at 5 o’clock p. m., and executed on tbe 7th day of May, Í915, at 8:45 o’clock p. m., by summoning the International & Great Northern Railroad Company, a corporation, by delivering a true copy of this writ to S. B. Mobley in person, the local agent of the above named company.”

Tbe amicus eurise suggests that on tbe 7th day of May, 1915, tbe day tbe citation in error was served, tbe said S. B. Mobley was neither tbe agent nor employé of tbe International & Great Northern Railway Company, nor in its service, nor bad be been engaged in any capacity of tbe said railway company since tbe 10th day of August, 1914, on which date Jas. A. Baker and Cecil A. Lyon were appointed receivers of said railway company by tbe United States District Court for tbe Southern District of Texas, and that on tbe date tbe citation in error was served on said Mobley be was employed as agent of said Baker and Lyon as such receivers, and bas been in their employment since said 10th day of August, 1914.

Attached to tbe written suggestion, as an exhibit, is tbe affidavit of said Mobley, which we here copy:

“The State of Texas, County of Harris.

“Before me, the undersigned authority, on this 12th day of February, A. D. Í9Í6, personally appeared S. B. Mobley, known to me to be the person whose name is subscribed to the following affidavit, who being by me duly sworn on oath deposes and states as follows, to wit: On the 7th day of May, 1915, citation in error was served on me in cause No. 603731 on the docket of the Eleventh district court of Harris county, Texas, styled Daniel Webster et al. v. I. & G. N. Railway Company. On said date I was neither agent nor employé, nor in the service of the International & Great Northern Railway Company, nor am I now agent or employé or in the service of the International & Great Northern Railway Company, nor have I been engaged in any capacity in the service of the International & Great Northern Railway Company since the 10th day of August, A. D. 1914, on which date Jas. A. Baker and Cecil A. Lyon were appointed receivers of the International & Great Northern Railway Company by the United States District Court for the Southern District of Texas. On the date said citation was served on me I was employed as agent of Jas. A. Baker and Cecil A. Lyon, receivers of the International & Groat Northern Railway Company, and have been since the 10th day of August, 1914, in their employ. S. B. Mobley.
“Subscribed and sworn to before me this 12th day of February, A. D. 1916.
“[Seal.] L. Temme,
“Notary Public in and for
Harris County, Texas.”

There was also attached a certified copy of tbe order of tbe United States District Court for tbe Southern District of Texas, showing tbe appointment of said Baker and Lyon receivers of said railway company on August 10, 1914.

Tbe power of tbis court to ascertain, by affidavit or otherwise, such matters of fact as may be necessary to tbe proper exercise of its jurisdiction is unquestioned. Article 1593, Vernon’s Say les’ Civil Statutes; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659; Dixon v. Lynn, 154 S. W. 650; Jones & Co. v. Gammell, 156 S. W. 317.

It is well settled that tbis court has no jurisdiction to entertain an appeal by writ of error, unless citation in error bas been legally served on tbe defendant in error, or service accepted. Pierce v. Cross, 36 Tex. 187; Thomas v. Childs, Id. 148; Garney v. Menefee, 53 Tex. Civ. App. 490, 118 S. W. 1083; McCloskey v. McCoy, 89 S. W. 450; National Cereal Co. v. Earnest, 84 S. W. 1101.

Whatever may be tbe ruling in other jurisdictions, it bas been held in tbis state that tbe agent of tbe receivers of a railway corporation under appointment of a court of competent jurisdiction is not tbe agent of tbe corporation, although before tbe appointment of tbe receivers be bad been tbe agent of tbe corporation and at tbe time of tbe service of citation upon him was serving tbe receivers as agent in tbe same capacity in which be bad served tbe corporation. Railway v. Moore, 32 S. W. 379.

It affirmatively appearing from tbe affidavit of S. B. Mobley that at tbe time of tbe service of citation in error upon him be was not tbe agent of tbe railway company, and as it appeiars from tbe record that it was upon tbis service that tbe wilt of error was attempted to be prosecuted, tbis court bas not acquired jurisdiction. It is therefore ordered that tbe writ of error be stricken from tbe docket of tbis court (Vineyard v. McCombs, 100 Tex. 318, 99 8. W. 544), with permission to tbe plaintiff to withdraw tbe record in order to perfect service. 
      &wkey;oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     