Maddox v. Humphries
| Decision Date | 31 October 1867 |
| Citation | 30 Tex. 494 |
| Parties | LEVI MADDOX v. JAMES HUMPHRIES. |
| Court | Texas Supreme Court |
Where the plaintiff filed a petition with the clerk, and indorsed it “The clerk will not issue upon this until further instructions by me,” the suit was not properly commenced until the order was given for the citation; and such a deposit or filing with the clerk did not arrest the running of the statute of limitation. Pas. Dig. art. 4604, note 1017.
ERROR from Guadalupe. The case was tried before Hon. I. B. MCFARLAND, one of the district judges.
This case, which was once before the supreme court, is reported in 24 Tex. 195. The original petition was filed in the district clerk's office of Guadalupe county on the 12th day of January, 1859. There was indorsed upon the back of the petition, in pencil, the following: The citation was issued on the 14th day of February, A. D. 1859.
The defendant pleaded the statute of limitation, upon the ground that the action, being one for damages, should have been brought in two years from the accrual of the cause of action, and that more than two years had elapsed from that time and the issuance of the citation. Upon this plea there was judgment for the defendant, and plaintiff brings his writ of error. The agreement submits the following as the question to be decided by the supreme court: “Whether the filing of the petition with instructions not to issue upon it until further orders will be such a commencement of suit as will interpose a bar to the running of the statute of limitation from the date of the filing of said petition, or whether the date of issuance of citation upon said petition is the date which is to determine the question of limitation.”
John P. White, for plaintiff in error. 1. Suit is commenced by petition filed in the office of the district clerk O. & W. Dig. arts. 406 to 408.
2. The petition, and not the citation, is the leading process in the suit. Sayles, Pr. § 248; Cummings v. Rice and Nichols, 9 Tex. 527;Dikes v. Munroe & Bro. 15 Tex. 236. In justices' courts in this state, and in suits at common law, the summons or writ is the leading process. Keeble v. Bailey, 3 Tex. 429; Angell, Lim. 334 to 338.
3. Wade v. Converse, 18 Tex. 233, is conclusive of the points involved in this case.
John Ireland, for defendant in error. A party cannot be entrapped and lulled into fancied security until he burns all evidence of his right by such secret proceedings. Badger v. Finney, 15 Mass. 359;Seaver v. Lincoln, 21 Pick. 267;Walter v. Sykes, 22 Wend. 566; Angell, Lim. 334, 335. Like a general demurrer, the statute may be pleaded at any time. Hence the case of Wade v. Converse, cited by plaintiff in error, has no application to the case. The statute began to run at the date of the service of the writ of injunction in the former suit (see same case, 24 Tex. 195); and from that time up to the issuance of the writ in this case was more than two years.
The plaintiff instituted suit against defendant, founded upon personal services for work and labor, etc., performed previous to 17th January, 1857. It seems that the petition was handed to the clerk of the district court on 12th January, 1859, with the indorsement thereon, “The clerk will not issue upon this until further instructed by me, C. Reich, attorney;” and the clerk, in obedience thereto, issued process on 14th February, 1859. From the deposition of the clerk, taken by consent, it was proved that he issued process on the day he was instructed so to do by plaintiff, and that he did not issue on...
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State ex rel. Merriam v. Ross
...as between parties to the suit. Lumber Co. v. Wright, 21 S.W. 811; Gordon v. Taylor, 53 Mich. 629; Wade on Notice, sec. 348; Maddox v. Humphries, 30 Tex. 494; v. Bradford, 7 T. B. Mon. 111-116; Seaver v. Lincoln, 21 Pick. 269; Co. v. Holleman, 27 P. 413, 414. Second. As to jurisdiction by c......
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Reed v. Reed
...170 S.W.2d 333, no writ history (a delay of 13 days); Bates v. Smith, 80 Tex. 242, 16 S.W. 47 (a delay of 30 days); Maddox v. Humphries, 30 Tex. 494 (a delay of 32 days); Ferguson v. Mellinbruck, Tex.Civ.App., 134 S.W.2d 680, writ dism., cor. judg. (a delay of 38 days); Cooper v. Irvin, Tex......
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Higginbotham Bros. & Co. v. Callaway, 2343.
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