Opinion
Delivered April 1, 1897.
Motion to Affirm on Certificate — Affidavits to Show Service of Citation in Error.
On a motion to affirm on certificate, affidavits furnished by the clerk of the trial court can not be considered for the purpose of showing that defendants in error were served with citation in error, where the certificate itself does not disclose such fact.
ERROR from Harris. Tried below before Hon. S.H. BRASHEAR.
No appearance for plaintiff in error.
Charles E. Dwyer, for defendants in error.
As shown by the certificate filed in this court by the defendants in error for affirmance of the judgment of the court below, the defendants in error, on July 25, 1896, recovered a judgment against the plaintiff in error for debt with foreclosure of lien. On October 5, 1896, plaintiff in error filed with the clerk of the court his petition for writ of error and a supersedeas bond, and citation in error was issued on October 13, 1896. The clerk certified that the sheriff's return of service of citation in error was not on file in his office, and could not be found.
Defendants in error have sought to show service of the citation on them by incorporating in the certificate the sheriff's return on the order of sale issued in the case, showing that the writ and sale advertised for the first Tuesday in October was superseded by a bond filed in the District Court; also by affidavits furnished to the clerk of the court below, accompanied by a copy of the citation in error, that they were served with the copy by the sheriff on November 2, 1896. The date of the affidavits is March 4, 1896.
The certificate must be stricken from the docket and dismissed, because it does not properly appear that the defendants in error were served with the citation in error, or when they were served. We can not take notice of the affidavits filed for that purpose. If the affidavits should be regarded as an acceptance of service, ninety days within which the plaintiff in error may file his transcript of the record in this court have not elapsed since they were made and delivered to the clerk.
Certificate dismissed.