Hance v. Cogswell
| Citation | 307 S.W.2d 277 |
| Decision Date | 13 November 1957 |
| Docket Number | No. 10523,10523 |
| Parties | C. A. HANCE, Appellant, v. Dr. R. E. COGSWELL, Appellee. |
| Court | Texas Court of Appeals |
Cowsert & Bybee, Hereford, for appellant.
No brief field for appellee.
This is an appeal by writ of error for the purpose of reversing a default judgment rendered for Dr. R. E. Cogswell against C. A. Hance for $208.30 with interest.
The only questions presented by appellant relate to the sufficiency of the citation served upon him to support a default judgment.
Appellee has filed no brief.
We copy the citation and endorsements thereon in full, omitting the Sheriff's Return:
'The State of Texas
To: C. A. Hance, Defendant, Greeting:
'You Are Hereby Commanded to appear before the Honorable County Court of Castro County, Texas at the Court House of said County in Dimmitt, Texas, by filing a written answer, at or before 10 o'clock A. M. of the Monday next after the expiration of twenty days after the date of service of this citation, to Plaintiff's Petition filed in said court on the ___ day of ___, A. D. 19__, numbered ___ on the docket of said court, and styled, Dr. R. E. Cogswell, Plaintiff, VS. C. A. Hance, Defendant.
'The nature of Plaintiff's demand is set out and shown by a true and correct copy of Plaintiff's Petition, accompanying this citation, and made a part hereof.
'If this citation is not served within ninety days after the date of its issuance, it shall be returned unserved.
'The officer executing this writ shall promptly serve the same according to requirements of law, and the mandates hereof, and make due return as the law directs.
'Issued and given under my hand and the seal of said court at Dimmitt, Texas, this the ___ day of July, A. D. 1956.
Castro County, Texas
By Katy Dodd, Deputy'
The record does not contain a copy of the certified copy of appellee's petition served upon appellant and we cannot know what endorsements, if any, it bore.
Appellant contends that since the citation does not disclose the date of filing appellee's petition, file number of the suit nor date of issuance of citation it will not support a default judgment.
Rule 101, Texas Rules of Civil Procedure, stating the requisites of a citation, provides in part:
'* * * It shall state the date of the filing of the petition, its file number and the style of the case, and the date of issuance of the citation, be signed and sealed by the clerk, and shall be accompanied by a copy of plaintiff's petition. * * *'
We assume, without deciding, that the file number on the back of the citation satisfies the rule because the other two requisites, missing here, are at least as important as the number of the case.
We would consider this case of a simple nature but for the somewhat hectic career of our opinion in Mitchell v. Rutter, Tex.Civ.App., 221 S.W.2d 979. There we held, relying upon what seemed to be well established principle, that a citation not directed as the rules required was insufficient to support a judgment by default. The parties were apparetly content with that decision as no motion for rehearing was filed. Then came the case of Nash v. Boyd, 225 S.W.2d 649, 652, by the Dallas Court of Civil Appeals which chose not to follow our opinion in Rutter and based its decision on Rule 118, T.R.C.P., with the statement that such rule, in Rutter, 'was not cited or considered.' We will notice this rule later.
Next came the casae of Nass v. Nass, 224 S.W.2d 280, Galveston Court of Civil Appeals, affirmed 149 Tex. 41, 228 S.W.2d 130, 131. There the Supreme Court said 'Petitioner contends that the decision in this case conflicts with the decision of the Court of Civil Appeals in Mitchell v. Rutter' supra. An examination of the opinion of the Court of Civil Appeals in Nass shows the question under consideration not to have been mentioned, hence all later references to this case will be to the Supreme Court opinion.
The Court in Nass overruled our opinion in Rutter and in doing so cited the Nash case by the Dallas Court. The decision in that case was based on Rule 118, T.R.C.P. This Rule reads:
'At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.'
The Court there held, in dissolving a temporary injunction enjoining all proceedings in a guardianship case. that since the process was subject to amendment under the above Rule that it was not void. The Court cited authorities from other States to sustain their holding but since the statutes or rules upon which they are based are not available to us they cannot be analyzed. Cited also is the United States case of Semmes v. U. S., 91 U.S. 21, 23 L.Ed. 193, Syl. 2, reading:
'A decree of the Circuit Court ought not to be reversed for a defect in the form of process, which is amendable.'
It is to be noted that the present Federal Rule on the subject, 4(h), Federal Rules of Civil Procedure, 28 U.S.C.A. does not require any notice before amending process or proof of its service.
Prior to the adoption of our Rule 118 our statutes provided only that the return of the officer could be amended. Art. 2044, R.C.S., 1925. This statute also provided that the amendment could be made at 'any time' and did not require notice yet such statute was construed
'* * * that in authorizing the officer to amend his return 'at any time' the statute contemplates the right to amend after the term as well as before, provided the amendment is made after full notice to the defendant or his attorney and after he has been afforded an opportunity to plead any matter of defense which he might have originally set up.' Beaumont Court of Civil Appeals, Midwest Piping & Supply Co. v. Page, 128 S.W.2d 459, 462, writ refused, quoting from 33 Tex.Jur. 908.
The Court in that case accordingly held that an amendment made under Art. 2044 after appeal by writ of error had been perfected could not be considered in support of a...
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Asset Protection v. Armijo
...v. Wilber , 810 S.W.2d 461, 463 (Tex.App.--San Antonio 1991, pet. denied) (failure to include cause number on citation); Hance v. Cogswell , 307 S.W.2d 277, 278-80 (Tex.Civ.App.--Austin 1957, no writ) (omission of date of filing of petition, cause number, or date of issuance). The same is t......
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Montgomery v. Hitchcock
...was filed on November 1, 2006, and citation stated filing date of December 08, 1994, and reversing default judgment); Hance v. Cogswell, 307 S.W.2d 277, 278-80 (Tex. Civ. App.—Austin 1957, no writ) (reversing default judgment where citation did not state date of filing of petition, file num......
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Zaragoza v. De La Paz Morales
...See Diamond Chemical Company, Inc. v. Sonoco Products Company, 437 S.W.2d 307 (Tex.Civ.App. - Corpus Christi 1968, no writ); Hance v. Cogswell, 307 S.W.2d 277 (Tex.Civ.App. - Austin 1957, no writ); Firman Leather Goods Corporation v. McDonald & Shaw, 217 S.W.2d 137 (Tex.Civ.App. - El Paso 1......
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In Interest of J.T.O., No. 04-07-00241-CV (Tex. App. 1/16/2008), 04-07-00241-CV.
...that the "petition was filed on 12/08/1994."2 This error in stating the petition's filing date is fatally defective. Id.; Hance v. Cogswell, 307 S.W.2d 277, 278, 280 (Tex. Civ. App.-Austin 1957, no writ); Garza v. Garza, 223 S.W.2d 964, 964 (Tex. Civ. App.-San Antonio 1949, no writ). Althou......