Bill Holman v. Robert C. Jeep ( 1993 )

Holman v. Jeep

IN THE

TENTH COURT OF APPEALS

No. 10-93-081-CV

     BILL HOLMAN,

                                                                                              Appellant

     v.

     ROBERT C. JEEP, ET AL.,

                                                                                              Appellees

From the 170th District Court

McLennan County, Texas

Trial Court # 92-3747-4

MEMORANDUM OPINION

      By petition for writ of error Bill Holman appeals a default judgment granted in favor of Robert C. Jeep, Elisabeth Jeep, and Jeep Recovery Systems, Inc. A writ of error is available to a defendant against whom a default judgment has been taken if it is brought (1) within six months from the signing of the judgment, (2) by a party to the suit, (3) who did not participate in the trial on the merits, (4) where there is error apparent on the face of the record. There are no presumptions in favor of valid service of citation when a default judgment is attacked by writ of error. Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure relating to service of citation renders any attempted service invalid.

      By an agreed motion to set aside the trial court's judgment, all parties agree that the plaintiffs failed to serve Holman in strict compliance with the Rules of Civil Procedure. Because the parties do not dispute that the trial court lacked jurisdiction to enter a default judgment against Holman, we grant the petition for writ of error. Accordingly, we reverse the trial court's judgment and remand the cause for trial.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed September 1, 1993

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