Opinion
Writ of error refused April 5, 1922.
January 7, 1922. Rehearing Denied February 11, 1922.
Error from District Court, Tarrant County; Sam R. Sayers, Special Judge.
Action by W. L. Hawkins against J. Y. Martin and others. Judgment for plaintiff, and defendants bring error. Affirmed in part, and reversed and remanded in part.
W. N. Coombes and Gano, Gano Scurry, all of Dallas, and McLean, Scott McLean, of Fort Worth, for plaintiffs in error.
J. W. Stitt, of Fort Worth, for defendant in error.
W. L. Hawkins filed suit against J. Y. Martin, M. R. Martin, H. L. Martin, Jesse W. Martin, and H. G. Martin in damages. A default judgment was rendered, and the defendants have appealed.
The sheriff's return on the service of citation on all the defendants except H. G. Martin is as follows:
"Came to hand on the 20th day of June, 1920, at _____ o'clock ______ M., and executed in Tarrant county, Texas, by delivering to the within named defendant ______ in person, a true copy of this citation (together with the accompanying certified copy of the plaintiff's petition) at the following times and places, to wit:
Place and — Mileage Distance Course and Name. Date. Time. Courthouse. from Mo. Day Yr. Hr. Min. M.
J. Y. Martin 6 30 1920
M. R. Martin 6 28
H. L. Martin 6 30
Jesse W. Martin 6 30
"I actually and necessarily traveled 80 miles in the service of this citation, in addition to any other mileage I may have traveled in the service of other process in the same case during the same trip.
"Fees: Serving 4 cop. ....................................... $3 00 Mileage .............................................. 4 00
Total .............................................. $7 00
"Sterling P. Clark,
"Sheriff Tarrant County, Texas.
"By W. C. Parker, Deputy."
Appellants urge that June 20, 1920, was Sunday, and that the delivery to the sheriff on said day was a part of the service, and hence the process was in violation of article 1816, V. S. Tex.Civ.Statutes. We do not think the delivery to the sheriff on Sunday of the citation was a violation of the statute, and hence overrule this assignment.
By another assignment, it is urged that a judgment by default cannot be sustained in this case, because the service fails to show that the sheriff delivered to each defendant a copy of the citation; that a citation on more than one defendant is invalid unless it appears from the face of the officer's return, without the aid of intendment by the court, that the citation was executed by delivering a copy to each of the defendants named in said citation. By reference to the officer's return above set out it will be noted it does not appear that a copy of the citation was delivered to each of the defendants. We feel that this assignment must be sustained. Article 1856, V. S. Tex.Civ.Statutes, reads:
"Unless the process should otherwise direct, the citation shall be served, if within the county in which the suit is pending, by the officer executing it delivering to the defendant, or, if there be more than one, then to each defendant in person, a true copy of the citation." Swilley v. Reliance Lumber Co. (Tex. Civ. App.) 46 S.W. 387; Duke v. Spiller, 51 Tex. Civ. App. 237, 111 S.W. 787; Kinnell v. Edwards (Tex. Civ. App.) 193 S.W. 363.
But appellee urges that, as in the case of H. G. Martin, served in Dallas county, the service appears to have been regular, the judgment as against him should be affirmed, even though we should conclude that it should be reversed as to the others. This would be true if the liability of defendants pleaded by plaintiff was shown to be several as well as joint. The judgment taken appears to be joint and several. But if the petition failed to allege several liability, in words or as a matter of law, the judgment awarding several liability against the defendant cannot be sustained. In order to give a judgment the merit and finality of an adjudication between the parties, it must be responsive, not only to the proof, but to the issues tendered by the pleadings. 15 R.C.L. 602.
The petition states a case of debt, dependent upon the promise of all the defendants to plaintiff. This action is one upon a contract, alleged to have been made, in which all parties defendant bound themselves to pay the debt. We believe that such action necessarily involved the several liability of each defendant as well as the joint liability of all of them. Gwinn et al. v. O'Daniel et al., 5 Tex. Civ. App. 112, 23 S.W. 850; 13 C.J. p. 578, and note 24; Meyer v. Estes, 164 Mass. 457, 41 N.E. 683, 32 L.R.A. 283; Townes' Texas Pleadings (2d Ed.) p. 282, and cases cited under note 49.
Hence the judgment against H. G. Martin is affirmed, and as against the other defendants is reversed and remanded, for want of proper service. One-fifth of the costs of this appeal is adjudged against appellant H. G. Martin, and four-fifths of the costs is adjudged against appellee.
Affirmed in part, reversed and remanded in part.