Graves v. Drane
| Decision Date | 09 November 1886 |
| Citation | 1 S.W. 905 |
| Court | Texas Supreme Court |
| Parties | GRAVES v. DRANE and others. |
Simpkins & Neblett, for appellants.
A judgment by default was rendered against the defendant in the court below. He brings this case to this court by writ of error, and by his assignments of error complains that the citation, the sheriff's return thereon, and the petition are each insufficient to authorize the judgment as rendered. The point made upon the citation is that the writ commands the officer to summon the defendant to answer the petition of "Drane, Johnson & Drane," and does not give the full names of the partners composing the firm. The petition contains both the partnership and individual names of the plaintiff; and the suit having been brought in Navarro county, and the writ directed to Hamilton county, where defendant resided, a copy of the petition accompanied the citation, and was served upon the defendant. A similar citation, issued upon a like petition, was held good under the act of 1846, (Dikes v. Monroe, 15 Tex. 236; Andrews v. Ennis, 16 Tex. 45,) and we can see no reason for adopting a different rule under the Revised Statutes. If the suit had been brought in the county of defendant's residence, and the writ had issued without such copy, giving only the partnership name of the plaintiffs, a different question would have been presented to us; but this question we are not, at this time, called upon to decide. We think the citation clearly sufficient.
The sheriff's return on the citation shows that it was served "the twenty-second day of September, A. D. 1885, by delivering to F. M. Graves, the within-named defendant, in person, a true copy of this writ, together with a certified copy of plaintiffs' original petition." Counsel cite Rev. St. art. 1220, which provides that the officer should deliver to the defendant, in person, (where the citation is served out of the county in which the suit is pending,) "a certified copy of the petition accompanying the citation." We think the return shows clearly that the officer has done precisely what this article of the statute requires. The citation itself shows that a certified copy of plaintiffs' petition accompanies it, and none other could legally accompany it. Hence a certified copy of plaintiffs' original petition in this case must be the copy which accompanied the writ, whether expressly stated or not. The very language of the statute need not be used. Clark v. Wilcox, 31 Tex. 328, 329....
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Moran Oil & Gas Co. v. Anderson
...of the contention so made: Dikes v. Monroe, 15 Tex. 236; Crain v. Griffis, 14 Tex. 358; Guimond v. Nast, 44 Tex. 114; Graves v. Drane et al., 66 Tex. 658, 1 S. W. 905; Marshall v. Marshall, 30 S. W. 578; Lash v. Bank, 54 S. W. 806; National Society v. Tennison, 174 S. W. 978; O'Donnell v. C......
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National Equitable Society of Belton v. Tennison
...substantial compliance with the statute, it will not support a judgment by default. The same learned judge, in the case of Graves v. Drane, 66 Tex. 658, 1 S. W. 905, held, even though the citation did not give all the names of the partners plaintiff in full, the petition which gave all thei......
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Merriman v. Swift & Co.
...does contain the allegation of indebtedness by defendant to plaintiff, it is to be distinguished from that shown in Graves v. Drane, 66 Tex. 658, 1 S. W. 905, in which case it was held, that the petition was good as against a general demurrer but would have been subject to special We do not......
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De Walt v. Zeigler
...the citation was sufficient. Putman v. Wheeler, 65 Tex. 525. This case seems not to have been in the mind of the court when Graves v. Drane, 66 Tex. 658, 1 S. W. 905, was decided, but this latter case does not decide the question. The record shows that the appointment of the clerk pro tem. ......