Thompson v. Griffis
| Decision Date | 01 January 1857 |
| Citation | 19 Tex. 115 |
| Parties | BENJAMIN F. THOMPSON AND ANOTHER v. JAMES H. GRIFFIS, ADM'R. |
| Court | Texas Supreme Court |
Where there were three defendants, A, B and C, and three citations were issued, each of which directed the sheriff to summon all of the defendants, naming them; but one was indorsed by the clerk as original citation for A, another for B, and the other for A, and the one indorsed for A was returned that A could not be found, and the one indorsed for B was returned served on B, and the one indorsed for C was returned “Executed on ____, Nov. 11th, by delivering a true copy of writ and petition, 1854,” signed by the sheriff, it was held that the latter return did not show service on C.
Where the entry of judgment by default recited that, “now come the parties by their attorneys, and plaintiff dismisses his suit as to Thomas J. Cornelius, and the other defendants being called came not, but made default,” it was held that the recital was not equivalent to a recital that the parties appeared, and failed to file an answer, but was repugnant and contradictory; and the service being defective, the judgment was reversed.
Error from Rusk. Tried below before the Hon. William W. Morris.
Suit by appellee against Brown, Cornelius and Thompson. Three original citations were issued, each directing the sheriff to summon Brown, Cornelius and Thompson; but one indorsed “original citation for Brown, issued Nov. 9, 1854, John P. Grigsby, C. D. C.” and was returned served on Brown. Another was similarly indorsed for Cornelius, and was returned that Cornelius was not to be found. The third was similarly indorsed for Thompson, and was returned as stated in the opinion.
The entry of judgment read, “for which execution may issue at the expiration of three months.”
The other facts are stated in the opinion.
N. G. Bagley, for plaintiffs in error.
The defendant in error submits this case with a suggestion of delay, and files a brief to show that service on Thompson, one of the defendants, is good, and that he appeared on the trial.
The record shows service on Brown, and that Cornelius was not found. There is another citation directing the sheriff to summon Cornelius, Brown and Thompson, and there is a return thereon as follows: “Executed on _____, Nov. 11th, by delivering a true copy of writ and petition, 1854,” which is signed by the sheriff.
The judgment recites, “and now come the parties by their attorneys, and plaintiff dismisses his suit as to Thomas J. Cornelius, and the other defendants being called came not, but made default;” then follows a recovery against Thompson and Brown.
The return of the sheriff does not make good service on Thompson. The statute requires the sheriff to state the manner in which he executes process, and the day on which it is executed. This writ includes three defendants, and the return shows service on Cornelius as strongly as it does on Thompson. It does not state what writ and petition they are, a copy of which is delivered; and the date of the execution has the month and the year in entire disconnection. One who knows what the return ought to be can infer enough from what is stated, to...
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