This is an appeal from the judgment of the district court of Navarro county admitting to *Page 489 probate the purported last will and testament of Mrs. Mary J. Wilson. We are met at the threshold with the proposition that the judgments of both the county court and the district court are void because no proper citation was issued and served as required by articles 3333, 3334, and 3338. The facts with reference thereto are undisputed. It appears that appellees, as executors named therein, filed an application to probate the will of Mrs. Wilson in the county court of Navarro county on March 26, 1929. The citation issued thereon by the clerk was addressed to the sheriff or any constable of _____ county, and commanded him to have the notices posted in _____ county. Said citation was delivered to the sheriff of Navarro county, who properly posted same in Navarro county. Appellants' sole contention is that said citation was insufficient because it was addressed to the sheriff or any constable of _____ county, with instructions to post notices in _____ county, instead of being addressed to the sheriff or constable of Navarro county, with instructions to post notices in said county. Appellants, being some of the heirs of Mrs. Wilson, filed a contest to the probate of said will, claiming that it was obtained by undue influence and that Mrs. Wilson was at the time she executed same of unsound mind. Appellants, both in the county court and in the district court, by proper plea, challenged the power of the court to probate said will because of the insufficiency above stated in the citation as issued and served.
Appellees contend that the citation is sufficient, and further, that, if same is not sufficient, appellants, by having appeared and filed a contest thereof, waived any defects in said citation. Both the county court and the district court overruled appellants' contention and heard the contest on its merits, and each of said courts admitted the will to probate.
Unquestionably, a citation issued under article 2021, Revised Statutes, and served in a suit pending in the county or district court, addressed as the citation in this case is, to the sheriff or constable of _____ county, would not be sufficient to authorize a judgment by default to be entered against the defendants. Under an unbroken line of authorities it is held that a citation in a civil suit must be directed to the sheriff or constable of the county in which the defendant lives, and that only the officer living within the county to which the citation is directed has the power to serve same. G. H. S. A. Ry. Co. v. McTiegue, 1 White W. Civ.Cas.Ct.App. § 457, page 210; G., H. S. A. Ry. Co. v. Ware, 74 Tex. 48, 11 S.W. 918; Witt v. Kaufman, 25 Tex.Supp. 384; Douthit v. Martin, 15 Tex. Civ. App. 559, 39 S.W. 944; Perez v. Perez, 59 Tex. 322; Levy v. Roper, 113 Tex. 361, 256 S.W. 251. In Witt v. Kaufman, supra, which holding was specifically approved by the Supreme Court in Levy v. Roper, supra, the court stated: "A citation, directed to an officer of Dallas county to execute, was no authority to the sheriff of Parker county to execute the process. Service of the process by him was, in contemplation of law, no service. The court, therefore, had not jurisdiction of the person of the defendant, and the judgment was consequently void."
Article 2286 of the Revised Statutes provides: "The style of all writs and process shall be `The State of Texas;' and unless otherwise specially provided by law, every such writ and process shall be directed to the sheriff or any constable of the proper county."
There is no special provision in our statutes for the citation, required to be issued under article 3333 of the Revised Statutes for the probate of wills, to be directed to any person, commanding him to serve same, and; in the absence of any exclusive or special statute relative thereto, same is under the plain provision of article 2286, supra, governed by its provisions, and all citations issued under said article 3333 must be directed to the sheriff or constable in the county where the will is filed for probate, commanding him to serve same. As stated in 21 R.C.L. 1266: "At common law all writs and other process must be directed to some person authorized by law to execute same and without such direction they are wholly void." To the same effect is the text laid down in 50 C.J. 454, where the rule is stated to be: "Process should ordinarily be directed to the officer who is to serve it, such as the sheriff of the county wherein the suit is pending, or where the defendant is alleged to be a resident."
Under articles 4114 and 4115 of the Revised Statutes, relating to the appointment of guardians, very similar notices are required to be issued as are required for citation under article 3333 for the probate of a will. Under said articles it was specifically held in Threatt v. Johnson (Tex.Civ.App.) 156 S.W. 1137, 1139, that unless and until the notice as required therein had been properly issued and served, the probate court had no power to appoint a guardian, and used the following language: "The power of the court to appoint the permanent guardian on the proceedings is a special power conferred by the statute, and the statute as to the issuance and service of citation must be substantially followed in order to make valid the exercise of the power; for compliance with the statute is a condition precedent to the valid exercise of the power, and is jurisdictional. And any attempt to exercise the power of appointment, without such express requirement being complied with, becomes a nullity. The citation here undertaken to be issued so far failed of even a substantial compliance with the requirements as to have the legal effect of being a nullity in this proceeding." *Page 490
We think the citation issued in this proceeding, directed to the sheriff or constable of _____ county to be served in _____ county, was insufficient, and service thereof by the sheriff of Navarro county did not give the county court of Navarro county authority to make any orders connected with said estate. Under the provisions of article 3338 of the Revised Statutes, until a citation was properly issued and served, the court had no jurisdiction over the matter, and could not enter any order affecting same.
Appellees' contention that the defects in the citation were cured by reason of appellants' having appeared and filed a contest has been definitely, and we think correctly, decided against them. In the early case of Perez v. Perez, 59 Tex. 322, the court stated: "We believe that the court erred in proceeding to probate the will without service of citation upon all the parties named in the petition as entitled to the inheritance. Process was doubtless waived by those who appeared, but the rest of the heirs of the deceased were necessary parties to the proceeding, and if they were not before the court, the probate of the will was improperly had."
In Threatt v. Johnson, supra, the court stated: "Appellees' appearance in court would not dispense with the necessity of the citation required and operate to confer jurisdiction on the court; for the citation in this character of proceeding is not a matter personal to appellees, and appellees had no right to file a contest until the citation was issued."
Since neither the county court nor the district court had the power to probate the will in controversy by reason of no proper citation having been issued and served, said judgments of said courts are void. The judgment of the district court probating said will is reversed, and the cause is remanded to the district court, with directions to it to dismiss the appeal.