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Wilson v. Dunn

Supreme Court of Texas

October 24, 1990, Delivered

No. C-7796

Opinion

 [*833] OPINION

The district court in this case authorized substitute service of suit papers upon defendant without an affidavit or other evidence justifying such service as required by Rule 106(b) of the Texas Rules of Civil  [*834]  Procedure. 1 Defendant nevertheless received citation and plaintiff's petition, but did not answer, and the trial court rendered default judgment against him. The court of appeals reversed the default judgment because of the defect in service and remanded the case to the trial court for further proceedings. 752 S.W.2d 15. We affirm.

Jesse Wilson sued Michael Dunn for damages resulting from Dunn's [**2]  negligent operation of a motor vehicle. 2 Wilson alleged that Dunn could be served with citation at his apartment, where, in fact, Dunn was then residing and has resided at all times material to this case. Repeated, sustained efforts to serve Dunn there, however, both in person and by mail, proved unsuccessful.

After several months, Wilson's attorney filed a motion for substitute service under Rule 106(b). Rule 106(b) states:

Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably [**3]  be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service

(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or

(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.

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800 S.W.2d 833 *; 1990 Tex. LEXIS 133 **; 34 Tex. Sup. J. 60

JESSE WILSON, Petitioner v. MICHAEL DONNELL DUNN, Respondent

Subsequent History:  [**1]   Rehearing overruled January 23, 1991.

Prior History: From Tarrant County; Second District.

CORE TERMS

default, notice

Civil Procedure, Pleadings, Service of Process, General Overview, Pretrial Judgments, Default & Default Judgments, Default Judgments, Judgments, Relief From Default, Relief From Judgments, Motions for New Trials, Appeals, Reviewability of Lower Court Decisions, Preservation for Review