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Rule 161. Where Some Defendants Not Served


Where some of the several defendants in a suit are served with process in due time and others not so served, the plaintiff may either discontinue as to those not so served and proceed against those that are, or he may take new process against those not served. No defendant against whom any suit may be so discontinued shall be thereby exonerated from any liability under which he was, but may at any time be proceeded against as if no such suit had been brought and no such discontinuance entered.

Source: Art. 2087.

Change: Reference to the succeeding term of court is eliminated.

Oct. 29, 1940, eff. Sept. 1, 1941.


Dec. 5, 1983, eff. April 1, 1984

April 24, 1984, eff. Oct. 1, 1984

July 15, 1987, eff. Jan. 1, 1988


Question: What is appearance day with reference to withdrawing a case from the court's docket without the necessity of the judge's dismissing it?

Answer: Under Rule 237 appearance day applies to a defendant who has been served or who has accepted service and the rule prescribes the time and manner in which he shall answer. If no citation is ever issued on the petition and there is no acceptance of service there is no appearance day under the rules. Rules 22 to 26, inclusive, require the clerk when a suit is filed to docket the same, etc. We think a suit in which no citation has been issued or served, although not specifically mentioned in the rule, as well as one in which citation has been issued and served and no answer has been filed, may be discontinued in vacation under Rule 162 upon payment of costs, as the underlying principle is the same. It is an orderly procedure, and no one can complain of the discontinuance.

During term time, discontinuance as to a defendant who has not been served is allowable under Rule 161. We think it is desirable and the better procedure that dismissals during term time be made by the judge, if practicable. See Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 708, syllabi 8 and 9 (1944).

8 Tex. B.J. 129 (1945).