Marshall v. Marshall

• Decision Date: 14 March 1895
• Citation: 30 S.W. 578
• Parties: MARSHALL v. MARSHALL.
• Court: Texas Court of Appeals

30 S.W. 578

MARSHALL v. MARSHALL.

Court of Civil Appeals of Texas.

March 14, 1895.

Error from district court, Brazos county; John N. Henderson, Judge.

Action by Ira Marshall, by guardian, against Bud Marshall, by guardian. Judgment by default for plaintiff, and defendant brings error. Affirmed.

J. A. Buckholts and S. R. Henderson, for plaintiff in error. A. C. Breitz, for defendant in error.

WILLIAMS, J.

This is a writ of error from a judgment, by default, in favor of defendant in error against plaintiff in error, for the partition of certain land and personal property. The ground relied on for reversal is that the citation was defective, and insufficient to support the judgment. The citation and the indorsement on its back bear date March 20, 1893. It states that the petition was filed March 20, 1893, and the file mark on the petition is of that date. The writ, however, was addressed to the sheriff of Grimes county, and was accompanied by a certified copy of the petition. It commanded the sheriff to summon the defendants to appear on the first Monday in March, 1893, that being the 6th of March, 1893, and complies in all other respects with the law. The return of the sheriff shows that it was received and served February 21, 1893, a copy of the petition being delivered. The return is complete, and is not questioned. The court met March 6, 1893, and entered judgment, by default, April 11, 1893, for partition, and appointing commissioners to report at same term. April 14, 1893, the commissioners reported, showing a partition, which was on the same day confirmed.

The statute requires that the citation shall state the date of filing the petition, and shall be dated and tested by the clerk. Rev. St. arts. 1215, 1443. This, of course, means that the true dates shall be stated; and the writ in question shows on its face, in connection with the return, that these requirements were not observed. It is served on February 21st, commands defendant to appear on the 6th of March, and at same time states that the petition was filed and the writ issued at a time later than those dates. It is unquestionably defective, and the only question to be determined is whether or not the defects are of such character as can be made the ground of reversal on error, when the defendant did not except or move to quash in the court below.

In Cave v. City of Houston, 65 Tex. 622, Chief Justice Willie says: "With the means in his power of ascertaining the correctness of the statement made in the citation, the defendant could not wait till a judgment by default was taken, and then, upon appeal to this court, for the first time set up so slight a defect as the ground for reversing the judgment. If the process is void, the defendant is not required to obey it; but, if merely defective, it brings defendant into court. If he does not then take his exceptions, at the proper time, he cannot afterwards be heard to urge it as error in this court. Crain v. Griffis, 14 Tex. 358." In the case thus referred to the same rule is laid down, and it is said, in substance, that if the defect was one that might be cured by amendment, on motion to quash, the party will not be heard on error to complain, not having objected in the court below. These decisions have been referred to and followed in other cases. Loungeway v. Hale, 73 Tex. 497, 11 S. W. 537; Hale v. McComas, 59 Tex. 487.

The defects in the present citation are not the same as those of which the court in those cases was speaking; but it seems to us clear that, under rulings in other cases, the defects in this writ were amendable, and could have been remedied had objection been taken in the court below. Thus, in Austin v. Clapp, 5 Tex. 133, it was held that a mistake in the date of the citation, making it appear to have been issued on Sunday, could be corrected so as to show the true date of issuance on Saturday, and cases in which defects like those in this case were allowed to be amended were cited with approval; and it is a familiar practice to correct the file...