Cases argued and decided in the Supreme Court of the State of Texas, during the Austin term, 1885, and the early portion of the Tyler term, 1885. Volume 64. Page: 48
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48 CONTINENTAL INS. Co. v. MILLIKEN. [Austin Term,
Opinion of the court.
that he served process by serving it upon a particular person,- the
manner of service is left untold.
The statute now in force differs in no essential respect from the
former law declaring that the manner of service should be shown
by the officer's return (P. D., 1507); and under that it was held, in
many cases, that the return must show that the copy of the citation
was delivered to the person on whom the writ directed service to be
made. Graves v. Robertson, 32 Tex., 131; Willie v. Thomas, 22
Tex., 175; Ryan v. Martin, 29 Tex., 412; Thomason v. Bishop, 24
Tex., 302.
The statement in the return, that the citation was executed by the
delivery to the corporation of a copy of the citation, could be made
good only by showing proper service on the local agent, or in some
other manner authorized by the statute.
The court erred in overruling the motion or exception to the
sheriff's return.
It is hardly necessary to say that this court cannot, in this case,
revise the action of the court below in overruling a motion to correct
the sheriff's return on the citation, made since the appeal in
this case was perfected and since the term at which the judgment
was rendered.
If the court below had permitted the return so to be amended, it
could not affect the case on this appeal. Thomason v. Bishop, 24
Tex., 304.
There are other questions raised in the brief of counsel, but they
cannot be considered in the absence of proper bills of exception,
statement of facts or conclusions of law excepted to in the court
below, the failure to except being here insisted on, and not waived,
by a submission of the case without objection to the consideration
of the conclusions of fact and law based on the ground that no exception
was noted in the court below.
Conclusions of fact and law, made out at the request of counsel;
are found in the record; but neither the conclusions of law nor judgment
were excepted to, and, in such case, the sufficiency of the facts
found to sustain the legal conclusion will not be considered, unless
the failure to have the exceptions noted be waived.
If a party intends to have a case revised on the conclusions o1
fact and law found by the judge who tried the case, he should except
to the conclusions and have his exceptions noted in the judgment
entry. General Laws, 1879, p. 119.
When such exception is made and noted, the adverse party must
take notice of it, and if in his opinion the conclusions of fact or lat
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the Austin term, 1885, and the early portion of the Tyler term, 1885. Volume 64., book, 1886; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28510/m1/72/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .