Cook v. Jones

ON REHEARING

CLAUDE WILLIAMS, Chief Justice.

In appellee’s motion for rehearing, it is alleged that the writ of mandamus issued by us and our original opinion should be set aside and dismissed because appellant’s husband had been personally served with citation by the Sheriff of Dallas County, Texas, on October 14, 1974, and, therefore, the matter has become moot. Attached to such motion for rehearing is a copy of the Sheriff’s return reciting that the defendant Horace Cook was personally served with citation on October 14, 1974, and that such return of the officer was duly filed with Bill Shaw, District Clerk of Dallas County, Texas, on October 22,1974.

Our opinion, delivered on February 20, 1975, wherein we directed the issuance of a writ of mandamus directing the Sheriff of Dallas County, Texas, to defray the cost of publication of citation in appellant’s divorce action was predicated upon factual recitations contained in the transcript and briefs for both parties to the effect that efforts to obtain personal service of citation upon appellant's husband had been unsuccessful. In her affidavit in support of her petition to have citation served by publication, appellant Lessie Mae Cook stated that she had made diligent search in an effort to locate her spouse and had been unable to find him or determine his whereabouts. In her petition for mandamus in the trial court, appellant alleged that per *339 sonal service could not be obtained against the defendant-husband. The trial court, in denying the petition for mandamus, made findings of fact which included one that appellant-wife had been unable to locate her husband and that the defendant should be served by publication. These facts were set forth in appellant’s brief and were not denied in brief for appellees.

At the time the trial court issued its order denying the writ of mandamus in July 1974, and at the time such judgment was duly and tjmely appealed to this court in September 1974, the defendant-husband had not been served with citation. If in truth and in fact the defendant-husband was personally served with citation in the divorce action on October 14, 1974, as alleged by appellees in their motion for rehearing, we are given no explanation why the attorneys for appellant or the attorneys for appellees did not inspect the papers of the cause in the domestic relations court of Dallas County, Texas, and advise this court of the fact of personal service. This very vital fact, if properly brought before this court, would have very probably resulted in an opinion denying the writ of mandamus.

Since the question has now been presented to us in appellee’s motion for rehearing and is not supported in the record itself, we now amend and modify our previous opinion as follows:

The judgment is reversed and remanded to the trial court with the following instructions. (1) If upon proper hearing the trial court finds from the evidence that personal service for citation upon the defendant-husband was actually obtained in accordance with the law on October 14, 1974, then the trial court will enter an order dismissing the petition for writ of mandamus against appellees. (2) In the event the trial court should determine that personal service has not been legally effectuated upon the defendant-husband, as now contended by appellees, then and in such an event, the trial court is directed to issue its writ of mandamus ordering Clarence Jones, Sheriff of Dallas County, Texas, to comply with the provisions of Tex.R.Civ.P. 116 et seq., by having citation in this case duly served by publishing the same in a newspaper published in Dallas County, Texas, providing the costs therefor, and to return such citation, following service, in a manner provided by law.

Appellee’s motion for rehearing is overruled.