Felton v. Seeligson , 1923 Tex. App. LEXIS 433 ( 1923 )

Defendant in error has filed a motion to affirm this case on certificate. Plaintiffs in error resist this motion on the ground that the officer's return, as shown by the record of the clerk's certificate on file herein, is too defective to give this court jurisdiction of the case, and suggest to the court that the only order that could be entered is one striking the case from the docket.

The officer's return is as follows:

"Came to hand on the 2d day of January, 1923, and executed on the 4th day of January, 1923, by delivering to the within Henry Seeligson a true copy of this writ."

This is signed by the officer who served the citation in his official capacity. This return is defective, in that it does not show that it was delivered to the defendant in error "in person." Article 2092, Revised Statutes; Womack v. Slade (Tex. Civ. App.) 23 S.W. 1002.

This defect was rendered inconsequential by the defendant in error making personal appearance in this cause by filing his motion to affirm on certificate. By this action in asking affirmative relief in this court, defendant in error gave the court jurisdiction of the cause. Stephenson v. Chappell, 12 Tex. Civ. App. 296, 33 S.W. 880, 36 S.W. 482; Webster v. I. G. N. Ry. Co. (Tex. Civ. App.) 184 S.W. 295.

The motion to affirm on certificate is granted.