Frosch v. Schlumpf
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 422 |
| Parties | ANTHONY L. FROSCH v. JOHN P. SCHLUMPF |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Writ of Error from Galveston County.
The law requires that all process except subpœnas shall be under seal. Process calling upon a party to answer to a suit which is not under seal is void, and can exact no obedience.
A party upon whom defective process has been served may appear and take advantage of it in limine, by a motion to quash, or he may, upon writ of error, obtain the reversal of any judgment rendered by default in the suit. [4 Tex. 49;25 Tex. 583;28 Tex. 368, 635.]
Franklin, for plaintiff in error.
Webb and Duval, for defendant.
The plaintiff in error has assigned several errors in this case, but from the view we have taken of the law on one of them, it will not be material to notice any of the others. The plaintiff in error excepts to the citation by which the defendant was called to answer to this suit in the court below. The judgment was taken by default before any appearance was entered by the defendant, consequently the plaintiff must hold his judgment subject to all the legal exceptions to the process that might have been made in the court below. The exception is, “that the citation was not issued under the seal of the court.”
The statute of 1846 (sec. 10, p. 366), regulating the practice in the district courts, enacts “that the style of all writs and process shall be, ‘The State of Texas,’ and shall be tested in the name of the clerk of the court from which it is issued; it shall also state the name of the parties to the suit, the time and place of holding the court; shall be dated, and signed by the clerk, with the seal of the court affixed, excepting subpœnas, which may be issued without the seal,” etc. The exception in the last part of the section in favor of subpœnas shows that as to other process no exception could be allowed; that the seal of the court could not be dispensed with. It would seem, then, that a process to answer, without being authenticated by the solemnity of a seal, would not give any validity to the summons and may be treated as absolutely void, and no service of it could exact obedience, and could not authorize a judgment by default, because a party cannot be in default for failing to answer or appear to a void process. The citation in the record under consideration does not pretend to be under any seal. In its conclusion, where the attestation...
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Southwestern Settlement & Development Co. v. Randolph
...and the clerk issuing any process shall mark the day on which it issued." In construing this act, the Supreme Court, in Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655, "The exception in the last part of the section in favor of subpœnaes, shows that as to other process no exception could be......
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Moran Oil & Gas Co. v. Anderson
...Paris Exchange Bank, 1 Posey Unrep. Cas. 93; Delaware Const. Co. v. F. & M. Bank, 77 S. W. 628; Burleson v. Henderson, 4 Tex. 53; Frosch v. Schlumpf, 2 Tex. 422; Norvell v. Garthwaite, 25 Tex. 585; Durham v. Betterton, 79 Tex. 224, 47 Am. Dec. 655; Heath v. Fraley, 50 Tex. 211; Weems v. Wat......
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El Paso & S. W. Ry. Co. v. Kelly
...not to support a judgment by default, the judgment, on assignment of either ground, should be reversed on writ of error. Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655. And whatever is of itself a sufficient cause for reversal on appeal or error is of itself a good ground for setting aside......
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Carson Bros. v. McCord-Collins Co.
...court of Tarrant county was not impressed thereon as required by statute (Sayles' Ann. Civ. St. 1897, arts. 1214, 1447). Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655; Brewster v. Norfleet (Tex. Civ. App.) 22 S. W. 226; Chambers v. Chapman, 32 Tex. 570; Hale v. Gee (Tex. Civ. App.) 29 S. ......