Crawford v. Wilcox

• Decision Date: 01 March 1887
• Citation: 3 S.W. 695
• Parties: CRAWFORD and others <I>v.</I> WILCOX and others.
• Court: Texas Supreme Court

3 S.W. 695

CRAWFORD and others

v. WILCOX and others.

Supreme Court of Texas.

March 1, 1887.

Error to district court, Waller county.

Harvey & Browne, for plaintiffs in error. C. R. Breedlove, for defendants in error.

WILLIE, C. J.

The defendants in error sued J. A. Peebles, R. W. Crawford, and W. F. Durr on a promissory note made payable to "Laura S. Wilcox, guardian of W. B. Wilcox, minor, and Fannie J. Wilcox;" and alleged that Peebles was a resident of Waller county when the suit was brought, and that the other two defendants were residents of Harris county, but temporarily in the county of Waller. Citations for all the defendants were issued to Waller county, but those for Durr and Crawford were returned without service. Aliases were issued immediately to Harris county, the returns upon which showed that these two defendants had each been served with a copy of the citation, and also a certified copy of the petition. All the defendants having failed to answer, judgment by default was taken against them, in which Laura Wilcox was described as the guardian of W. L. Wilcox, minor; and from this judgment the present writ of error was sued out.

The assignment of error which objects to the judgment for a variance in the initial letter of the minor's middle name hardly deserves to be noticed. This letter was of no importance in identifying the minor; and, besides, the addition of "guardian," etc., after Laura Wilcox's name was a mere descriptio personæ, and might be rejected altogether without affecting her right to sue and obtain judgment upon the note.

There was no necessity for a supplemental petition to authorize citations to issue to Harris county. The statute says that citations may issue to the county where the defendant is alleged to reside or be, and Crawford and Durr were alleged to reside in Harris county. A supplemental petition could have alleged no more, and hence could not have given better directions to the clerk as to where he should send the process than was already contained in the petition on file.

Articles 1215 and 1443 of the Revised Statutes prescribe what the citation shall command. There is nothing in either of these articles which requires that the writ shall order the officer to whom it is directed to deliver to the defendant a certified copy of the petition. Article 1220 does prescribe that the officer serving a defendant outside of the county where the suit is pending shall deliver to him a certified copy of the...