Galveston & Red River Ry. Co. v. Shepherd

• Decision Date: 01 January 1858
• Citation: 21 Tex. 274
• Parties: GALVESTON & RED RIVER RAILWAY COMPANY AND ANOTHER v. BENJAMIN A. SHEPHERD.
• Court: Texas Supreme Court

21 Tex. 274

GALVESTON & RED RIVER RAILWAY COMPANY AND ANOTHER

v.BENJAMIN A. SHEPHERD.

Supreme Court of Texas.

1858.

In an action on a note executed by one as president of a railway company, the clerk issued the writ commanding the sheriff to summon such person as president, etc., and service was made on him. Held, that the writ and service were good. 9 Tex. 527;15 Tex. 237;27 Tex. 86.

Error from Harris. Tried below before Hon. P. W. Gray.

The material facts are stated in the opinion of the court.

D. J. Baldwin, for plaintiff in error. The petition alleges that the railway company made and delivered the note to Kuhlman for $1,421.30 one year after date, and a copy is set out in the petition. The railway company and Kuhlman are named in the petition as defendants. The writ commands the sheriff to “““summon Paul Bremond, president of the Galveston & Red River Railroad Company, if to be found,” etc.; and the return is, “executed by delivering a certified copy of this writ to the said P. Bremond, together with the accompanying certified copy of petition.”

A judgment by default was rendered, neither of the defendants appearing.

The only question to be determined is: Was the service sufficient to warrant the judgment against the railway company?

By art. 675, Hart. Dig., it is provided “that all writs shall state the names of the parties to the suit, the time and place of holding the court,” etc.

This was a reasonable provision, and is imperative in its language, and plain in its meaning.

The writ commands the sheriff to summon P. Bremond, etc., to appear, etc., “to answer the petition of B. A. Shepherd exhibited against him and John Kuhlman a copy of which,” etc. The process, if intended as a writ in that suit, is irregular upon its face; does not conform to the statute, and is so defective that it could not support the judgment. It was the railway company that was named as defendant in the petition; while the writ is against Bremond by a titular description. Bremond might or might not have been president of the railway company, he clearly was not a defendant in the suit, and the writ did not name the parties to the suit as required by statute.

It is a principle of law too well settled to require more than its affirmation, that before a party can be condemned in a court of justice, he must either be served with process, or voluntarily appear without process and waive it. In this case no process ever issued against the railway company; no appearance was ever entered; nor was the service of legal process ever waived. The judgment was therefore wholly unwarranted and should be reversed.

Henderson & Johnston, for defendant in error. It will be seen that the first error assigned by plaintiffs is wholly without foundation.

The petition sets forth that Paul Bremond is the president of the Galveston & Red River Railway Company.

Citations issued to both defendants, and were properly served and returned by the sheriff. The citation that was served upon Bremond commands the sheriff to summon Paul Bremond, president of the Galveston & Red River Railway Co., to appear at the proper term, to answer the petition exhibited against him and John Kuhlman, the suit was properly described in the citation. Hart. Dig. art. 674, also art. 679.

The case of Little v. Marler, 8 Tex. 107, may be relied upon by the plaintiff to sustain this question, but that case has no analogy to the present one. That case was where the citation called upon him to appear and answer to a suit brought against him by Henderson, without any reference to his co-defendants, included in the petition. Such is not the fact in this case, for the citation also includes Bremond's co-defendant, John Kuhlman, and distinctly names the parties to the suit. The case of Dikes v. Monroe & Brother, 15 Tex. 236, we think, sets this question at rest. It is there said, “The petition was right, and the departure from it would not have been calculated to surprise the defendant, because the copy of the petition, served upon him at the same time, would have given him more particular and special information of the nature of the action. If the petition is correct, all that can be required of the citation is substantially a conformity to the petition. We do not exact as much strictness as we would, if the citation with us was, as the writ is in the common law practice, the leading process in the suit. The petition, in our system of procedure, is the leading process.”

The judgment was rendered properly and at the proper term, and at the proper time, namely, the 28th November, 1856, and in accordance with art. 812, Hart. Dig., as appears from the record, the defendants not appearing and answering. And the judgment was for the proper amount, for the face of the note, fourteen hundred and twenty-one dollars and thirty cents, with interest thereon from the 26th day of February 1854, at ten per cent. per annum, amounting to three hundred and ninety dollars and seventy-eight cents, together with the principal, makes the precise sum for which judgment was rendered, which damages were properly assessed by the clerk as prescribed by law. Art. 812, Hart. Dig.

ROBERTS, J.

The objections made by defendant in error to the petition and writ of error are not sustained.

The railway company brings up this case upon the following assignments of error:

1st. That there was no process of citation against said Galveston & Red River Railway Company, nor any notice given the said Galveston & Red...