Irwin v. Auto Finance Co. ( 1931 )

Appellees, V. B. Rogers and W. Earl Harrison, a copartnership doing business under the name of Auto Finance Company, have filed their motion to affirm the judgment of the trial court on certificate. The transcript filed with said motion shows that D. L. Irwin is plaintiff in error and that V. B. Rogers, W. Earl Harrison, Edwin M. Rabon, and H. H. Tompkins are defendants in error. There is nothing in the transcript to show that the defendant in error Tompkins has been served with citation or that he has entered his appearance or that the appeal has been as to him in any way perfected.

Article 1839 of the Revised Statutes provides that the transcript shall be filed in the appellate court within ninety days from the perfection of the appeal or service of the writ of error. In order to confer jurisdiction upon the appellate court, it is necessary for the defendant in error to be served with citation, and the appeal is not perfected where there are several defendants in error until each of them has either accepted service or been properly served as required by law. Crank v. Crunk, 23 Tex. 605; Thompson-Morris Co. v. Pine Poindexter,55 Tex. 427; State Nat. Bank v. City of Dallas, 28 Tex. Civ. App. 299,68 S.W. 334 (error refused). Before the appellate court can, under article 1841 of the Revised Statutes, affirm on certificate., it is necessary for the record to show affirmatively that the writ has been properly served for the time and in the manner required by law. McCloskey v. McCoy (Tex.Civ.App.) 89 S.W. 450; Moore v. Hitchler,16 Tex. Civ. App. 44, 40 S.W. 197.

The motion is overruled, and the certificate dismissed.