Pruitt v. State
| Decision Date | 02 November 1898 |
| Parties | PRUITT v. STATE. |
| Court | Texas Court of Appeals |
Action by the state against Ed. Pruitt and others. From a judgment by default in favor of plaintiff, defendant Pruitt brings error. Affirmed.
Perryman & Bullitt, for plaintiff in error. M. M. Crane and E. P. Hill, for defendant in error.
On the 5th day of September, 1893, the state instituted this suit against Granville R. Morris as principal, and Ed. Pruitt, J. G. Minter, and T. B. Smith as sureties, to recover the sum of $543.45, alleged to be due by Morris as tax collector of Liberty county. None of the defendants answered, and judgment by default was taken. Pruitt has brought the case to this court on writ of error, and presents but one ground for reversal, which is that the citation served upon him did not correctly state the date of the filing of the plaintiff's petition.
The suit was brought in the district court of Travis county. Pruitt lived in Liberty county. In the body of the citation it is stated that the petition was filed on the 5th day of September, 1895, when in truth it was filed the 5th day of September, 1893. The citation was dated the 7th day of June, 1895, and it commanded the officer executing it, among other things, to deliver to the said Ed. Pruitt "the accompanying certified copy of the aforementioned petition." The return of the sheriff shows that he executed the citation on the 10th day of June, 1895, "by delivering to the within-named defendant, Ed. Pruitt, in person, a true copy of this citation, and the accompanying certified copy of plaintiff's petition." It is contended on behalf of Pruitt that this citation, and the service thereof upon him, did not authorize the court to render judgment against him by default, because the citation did not correctly state the date of the filing of the petition, as required by statute. The date of the filing of the petition, September 5, 1893, is indorsed on the petition. A certified copy of the petition would include this indorsement, and, as the citation and return thereon made by the sheriff show that Pruitt was served with a certified copy of the petition, we think it is reasonable to presume that said copy disclosed the fact that the petition was filed September 5, 1893, thereby correcting the impossible date given in the body of the citation. We say impossible date, because at the time the citation was issued, June 7, 1895,...
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...to presume that the copy of the petition served upon the defendant Pruitt contained a copy of the clerk's file mark. See Pruitt v. State, 92 Tex. 434, 49 S. W. 366. It has frequently been held that it is absolutely essential that the citation should state, not only the true date of the fili......
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