OPINION
This is an appeal by writ of error to set aside a default judgment granted to appel-lees in an original bill of review proceeding. Appellant raises six points of error; we find its first point of error to be dispositive and do not address the remaining points. We reverse and remand to the trial court.
On January 26, 1983, in cause number 83-08463, appellees sued appellant, under the uninsured motorist provisions of an automobile insurance policy issued by appellant to appellee, John Barkley, Jr., for injuries appellees sustained in an automobile accident. 1 Appellant filed an answer to appellees’ complaint in cause number 83-08463. On June 24, 1986, the trial court dismissed with prejudice appellees’ suit against appellant in cause number 83-08463 as a discovery sanction. It appears that the appellees’ suit against the other parties in cause number 83-08463 was dismissed on April 13,1987, for want of prosecution.
On October 12, 1987, in cause number 87-46930, appellees filed an original bill of
The citation for service on appellant in the bill of review proceeding (cause number 87-46930) was issued on October 14, 1987. The citation directed the officer serving it to return the citation to the court unserved if not served within 90 days from the date of issuance. The citation was served on appellant in cause number 87-46930 on February 1, 1988 — 107 days after issuance of the citation.
Appellant did not file an answer in cause number 87-46930. After conducting a hearing, the trial court signed a default judgment in cause number 87-46930 setting aside its judgment dismissing with prejudice appellees’ suit against appellant in cause number 83-08463 and awarding appellees various damages for personal injuries and property damage. Appellant perfected this appeal by writ of error pursuant to Tex.R.App.P. 45.
Appellant’s first point of error asserts the trial court’s default judgment is void because appellant was not properly served.
Review on appeal by writ of error is restricted to determining, among other things, whether the error complained of is apparent from the face of the record.
McKanna v. Edgar,
Appellant argues that the citation served on it was void because it was served more than 90 days after its issuance.
See, e.g., Lewis v. Lewis,
Appellant argues the default judgment should be set aside because the language in the citation, that it should be returned un-served if not served within 90 days of issuance, has the peril of misleading an unsophisticated defendant into believing that it could disregard a citation served more than 90 days after its issuance. Appellant also argues that even if the amendments to the Texas Rules of Civil Procedure apply, the citation is still void because, by containing the language that it should be returned unserved if not served within 90 days of issuance, the citation does not strictly comply with the rule of civil procedure relating to the issuance of a citation. Tex.R.Civ.P. 99. In other words, appellant argues that even if the amendments apply, the citation is void because it misstates the law contained in those amendments.
See McKanna v. Edgar,
When the citation was issued on October 14, 1987, Tex.R.Civ.P. 101 (Vernon 1979) (hereinafter referred to as rule 101)
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governed the requisites of a citation, and rule 101 required the citation to direct that it be served within 90 days after the date of issuance or be returned unserved. By or
The general rule is that in the absence of an expressed intention to the contrary, procedural rules adopted by the supreme court are applied to pending litigation, and subsequent steps in the case are controlled by the new rule.
Carney's Lumber Co. v. Lincoln Mortgage Investors,
Instead, the only authority this Court has found supports the proposition that the sufficiency of the citation must be determined by the law in force on the date of its issuance.
See ISO Prod. Management 1982, LTD. v. M & L Oil and Gas Exploration, Inc.,
Because rule 101 applies and appellant was served more than 90 days after issuance of the citation, the citation was void and appellant was not required to answer. Lewis, 667 S.W.2d at 911. Therefore, the default judgment should be set aside. Id.
We also agree with appellant that the language in the citation could mislead a defendant into believing that it could ignore a citation served more than 90 days after its issuance.
Compare Smith v. Commercial Equip. Leasing Co.,
Appellees argue that since appellant was properly served with the citation and appellant does not challenge the service itself, the default judgment is valid. We disagree, because proper service of a void citation is ineffective.
See ISO Prod. Management 1982 LTD,
Appellant’s first point of error is sustained.
The judgment is reversed, and the cause is remanded to the trial court.
Notes
. Appellees also sued other persons in cause number 83-08463 who are not parties to this appeal.
. In their original petition for a bill of review, appellees alleged that their suit against appellant in cause number 83-08463 was dismissed for want of prosecution on April 13, 1987. However, the transcript indicates that appellees' suit against appellant in cause number 83-08463 was dismissed with prejudice on June 24, 1986, as a discovery sanction.
. Repealed by order of the Texas Supreme Court on July 15, 1987, effective January 1, 1988.