Mills v. Howard , 12 Tex. 9 ( 1854 )

Wheeler, J.

This case differs from the cases heretofore decided, in which the writ of error was dismissed for the want ■of an averment in the petition for the writ, of the residence of the defendant in error, or that he was a non-resident, in that it appears by the record in this case, by averment of the plaintiff (now defendant in error) in the original petition, that he is a non-resident. The fact thus appearing by the record, it was not necessary to make the averment in the petition for the writ of error.

It will suffice as an answer to the remaining ground assigned in support of the motion, that it appears by the record that the attorney, on whom the citation was served, was attorney of record of the defendant in error in the Court below. It, therefore, was not necessary that it should appear by the return of the officer to the citation in error. The motion to dismiss is overruled.

Motion overruled.