Page 972
178 S.W. 972
IVEY 
v. 
DAVIS et al.
(No. 5511.)
Court of Civil Appeals of Texas. Austin.
June 9, 1915.
        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        Action by the Farmers' & Merchants' State Bank of Teague against J. Wed Davis and Joe Ivey, in 
which defendant Davis filed a cross-action against his codefendant Ivey. From a judgment for the plaintiff 
against both defendants and judgment over in favor of Davis against defendant Ivey, the latter appeals. 
Reversed as between Ivey and Davis and affirmed otherwise.
        Geo. W. Fryer and R. L. Williford, both of Fairfield, and James MacIntosh, for appellant.
        KEY, C. J.
        The Farmers' & Merchants' State Bank of Teague brought suit against J. Wed Davis and Joe Ivey 
upon a promissory note. The defendant Davis filed an answer which, among other things, contained a 
cross-action against his codefendant Ivey. A citation was issued and served upon both defendants, 
requiring them to appear and answer as to the cause of action set up by the plaintiff bank, but the record 
fails to show that any citation was issued and served upon the defendant Ivey, requiring him to answer as 
to the cross-action set up against him by his codefendant Davis. The defendant Ivey filed no answer, 
though the record shows that he was present when the case was tried; in fact, he testified as a witness, 
having been called for that purpose by the defendant Davis. The trial resulted in a judgment for the 
plaintiff bank against both defendants, and judgment over in favor of the defendant Davis against his 
codefendant Ivey, and the latter has appealed.
        We sustain the tenth assignment of error and reverse the case, because the record fails to show that 
the trial court had acquired jurisdiction to render any judgment in favor of the defendant Davis against his 
codefendant Ivey. In so far as that cross-action was concerned, Davis was plaintiff and Ivey was 
defendant, and before the court could acquire jurisdiction to try that branch of the case, it was necessary 
that Ivey be duly cited to answer Davis' suit against him, or that he file an answer, or otherwise enter an 
appearance as to that suit. Harris v. Schlinke, 95 Tex. 91, 65 S. W. 172; Kruegel v. Bolanz, 100 Tex. 572, 
102 S. W. 110; Johnston v. Fraser, 92 S. W. 49; Field v. O'Connor, 80 S. W. 872.
        The fact that Ivey was present when the case was tried, and testified as a witness for one of the 
other parties, did not constitute such an appearance as obviated the necessity of having him served with 
citation to answer the suit brought against him by his codefendant Davis, and therefore the court had no 
jurisdiction to render judgment against him. It is true that Ivey subsequently filed a motion for a new trial, 
in which motion he did not raise the question of jurisdiction, but that question is fundamental, and 
therefore it is proper for this court to consider it, either with or without an assignment of error.
        As this case has been transferred to this court, and as the other questions sought to be presented in 
appellant's brief may not arise upon another trial, or may be decided differently when appellant Ivey 
makes his defense, we feel constrained to express no opinion concerning them.
        For the error pointed out, the judgment is reversed and the cause remanded, as between appellant 
Ivey and appellee Davis, but affirmed in all other respects.
        Reversed and remanded in part, and in part affirmed.