Opinion
Application No. 27,294.
Decided November 10, 1943.
Citation — Rules — Appeal and Error.
Where the Court of Civil Appeals has correctly held that the Rule of Civil Procedure (107), relating to the return of citations, has no application to cases in the justice court, the application for writ of error will be refused.
Error to the Court of Civil Appeals for the Third District, in an appeal from Tom Green County.
This suit originated in the justice court and was brought by N.A. James, Incorporated, against Mims Brothers, "a firm composed of Joe Mims and Jack Mims, of Sterling County, Texas and George Demere of Water Valley, Texas." The last named defendant was dismissed. A default judgment was entered and a writ of certiorari to review same by the county court was granted because of the dismissal of the last named defendant and because the officers' return of citation had not been on file for ten days before default judgment was entered. The county court sustained a motion to dismiss the certiorari "for want of sufficient cause appearing in the affidavit and petition." That judgment was affirmed by the Court of Civil Appeals, 174 S.W.2d 276. Mims Brothers have applied to the Supreme Court for a writ of error.
The application for writ of error is refused.
B.W. Smith, of San Angelo, for petitioner.
Clyde Vinson, of San Angelo, for respondent.
This case involves many questions, as shown by the opinion of the Court of Civil Appeals. However, there is only one question presented to this Court in the application for writ of error, and that relates to the holding of the Court of Civil Appeals that Rule 107 of the Texas Rules of Civil Procedure does not apply to justice courts.
The Court of Civil Appeals in its opinion discussed the rules relating to district courts, county courts, and justice courts, and correctly held that Rule 107 does not apply to justice courts. Therefore the application for writ of error is refused.
Opinion delivered November 10, 1943.