Durham v. Betterton
| Decision Date | 13 January 1891 |
| Citation | 14 S.W. 1060 |
| Parties | DURHAM <I>et al.</I> v. BETTERTON <I>et al.</I> |
| Court | Texas Supreme Court |
C. A. Culberson, for appellants.
Whether a citation which omits to state the file number of the suit is such a compliance with article 1215 of the Revised Statutes as will support a judgment by default is the first question raised by the assignments of errors, and the only one, we think, necessary to be considered in this case. An essential feature of the citation provided for by the article referred to is that it "shall state the file number of the suit." Prior to the adoption of the Revised Statutes in 1879, this was not required. Pasch. Dig. arts. 1430, 1431. It is well settled in several decisions that a citation which does not "contain the names of the parties to the suit" is not sufficient to authorize a judgment by default. Norvell v. Garthwaite, 25 Tex. 583; Heath v. Fraley, 50 Tex. 211. The article cited does not more imperatively require that "the names of all the parties to the suit" shall be contained in the citation than that it "shall state the file number of the suit." The same reasons for holding, in the cases mentioned, that the citation was fatally defective applies to the case under consideration. Although the citation may be in all other respects perfect, and the objection urged may be therefore plainly technical, still the language of the law is unmistakable, and leaves no room for construction. To hold that the citation in this case, which does not "contain the file number of the suit," is sufficient, and will support a judgment by default, would be to dispense by judicial construction with a statutory requirement, and in effect repeal that portion of article 1215 declaring that the citation "shall state the file number of the suit." We think the judgment should be reversed, and the cause remanded.
Report of commission of appeals examined, their opinion adopted, judgment reversed, and cause remanded.
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...130 S. W. 731; Pruitt v. State, 92 Tex. 434, 49 S. W. 366; Smith v. Buckholts State Bank (Tex. Civ. App.) 193 S. W. 730; Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060. A purchaser at execution sale, when the execution issues in the name of only one of a partnership, and under a judgment i......
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Missouri State Life Ins. Co. v. Rhyne
...that the judgment should be reversed on other grounds hereinafter shown. Some of the decisions referred to are such as Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060, and Crenshaw v. Hempel, 60 Tex. Civ. App. 385, 130 S. W. 731, holding that the omission of the file number of the suit from......
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Kimmell v. Edwards
...the requirements of the statutes with respect to citations and the service thereof must be strictly followed. In Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060, Duke v. Spiller, 51 Tex. Civ. App. 237, 111 S. W. 787, and Crenshaw v. Hempel, 60 Tex. Civ. App. 385, 130 S. W. 731, it was held ......