Dunn v. Hughes
| Decision Date | 06 June 1896 |
| Parties | DUNN et al. v. HUGHES. |
| Court | Texas Court of Appeals |
Stine, Chesnutt & Hurt, for plaintiffs in error. R. Cobb, for defendant in error.
Reasons for Reversal.
The petition alleges a cause of action against E. T. Stevens and others named, arising on a promissory note, and was filed January 10, 1895. The citation commands the sheriff to serve E. T. Stevens, and the others named, to answer the petition of plaintiff, which it describes by correct number, names of parties, cause of action, etc., but misdescribes as to date of filing, which is stated to be January 14, 1895, which is the same date of its issuance. The sheriff's return on the citation showed that the writ was served "by delivering to E. T. Stephen, the within-named defendant, in person, a true copy of this writ." Judgment by default final was rendered against all the defendants. All prosecute this writ of error, complaining that the return of the sheriff fails to show that E. T. Stevens had been served with citation, and also complaining that the citation failed to comply with the statute, in that it failed to correctly state the date of the filing of the petition, but misdescribed it.
The proceedings are defective in the misdescription of the date of filing the petition, which, as required by article 1214, Rev. St. 1895 (article 1215, Rev. St. 1879), must be strictly complied with, to authorize a judgment by default. Railway Co. v. Erving, 2 Wilson, Civ. Cas. Ct. App. § 122; Kirk v. Hampton, Id. § 719. But we are of opinion that the return of the officer sufficiently showed that he had simply misspelled the defendant's name, for while he spells it "Stephen," instead of "Stevens," he further shows that he delivered the writ, which contained defendant's correct name, to the party named in the writ, and this part of the return made it certain as to whom he served with citation. Townsend v. Ratcliff, 50 Tex. 148. But, for the error named, we are constrained to reverse the judgment herein, and remand this cause, which is done accordingly.
1. Rehearing denied September 18, 1896.
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