OPINION ON MOTION POE REHEARING.
At the last term of this court the judgment in this case was reversed and the cause remanded, as between the plaintiff in error and Fred Emerson, one of the defendants in error. Emerson has filed a motion for rehearing, and a plea to the jurisdiction of this court. An inspection of the transcript, as well as Emerson’s affidavit attached to the motion, show that he resided in Collin County, where the case was tried, at the time the suit was instituted and at the time the writ of error was sued out; that no effort was made to procure personal service of the writ of error upon Emerson, but citation was issued thereon and served upon one of his attorneys. Emerson did not waive service or file an answer to the writ of error.
The statute requires a citation to be served upon the defendant in error, if he can be found in the county, if not, then it may be served upon his attorney of record. When the defendant resides in the county, and citation can be and is not served upon him, service upon his attorney does not confer jurisdiction upon the Appellate Court. (Oger v. Frobias, 63 S. W. Rep., 654; Yarnell v. Burnett, 61 S. W. Rep., 153; Cereal Co. v. Ernest, 12 Texas Ct. Rep., 133.)
The motion for rehearing is sustained and the writ of error dismissed.
Dismissed.