Wood v. City of Galveston

• Decision Date: 18 February 1890
• Citation: 13 S.W. 227
• Parties: WOOD <I>v.</I> CITY OF GALVESTON.
• Court: Texas Supreme Court

13 S.W. 227

WOODv.

CITY OF GALVESTON.

Supreme Court of Texas.

February 18, 1890.

Commissioners' decision. Appeal from district court, Galveston county.

Trezevant & Franklin, for appellant. Geo. P. Finlay, City Atty., for appellee.

ACKER, J.

The city of Galveston brought this suit against Mrs. Ann E. Wood to recover $458.66, alleged to be one-third of the cost of filling, grading, and paving Twenty-Third street in front of a lot belonging to defendant, and abutting on said street, and to foreclose a lien on the lot for the sum sued for. The petition was filed on the 22d day of May, 1888, and citation was served on defendant on the 29th day of the same month. The court convened on the 4th day of June, 1888; and on the 8th day of that month, the defendant having failed to answer, judgment by default was entered, and the cause passed for the assessment of damages by the court. On the 11th day of June, defendant filed a motion to quash the citation, and set aside the judgment, on the ground that the citation served on her required her to appear at a court to be holden on the first Monday in June to answer a petition stated therein to have been filed on the 22d day of the same month. The motion was under oath; and the copy of the citation attached to the motion, and alleged to be the one delivered to defendant, recited that the petition was filed on the 22d day of June. This motion was overruled; and on the 12th day of June the court assessed the damages, and rendered judgment final for the sum of $483.12, interest and costs, and that the lien claimed by plaintiff be foreclosed, and the lot sold to satisfy the judgment. On the 14th day of June, defendant filed a motion to set aside the judgment on the ground that the petition shows that "the city council of the city of Galveston has authority to grade, shell, repair, pave, or otherwise improve any street or alley in said city only when, by a vote of two-thirds of the aldermen elected, they may deem such improvement for the public interest, and said petition does not allege that such vote was ever taken or made by said city council," and said petition is therefore insufficient to support a judgment by default. On the 19th day of June, defendant filed an amended motion, on the grounds that the amount in controversy was not within the jurisdiction of the district court, and that the court had no jurisdiction to enforce a lien created under and by authority of the charter of the city of Galveston. The motions were overruled, and the defendant appealed. The first assignment of error is: "The court erred in holding as sufficient to authorize the judgment by default the citation stating the date of filing plaintiff's petition to be the 22d day of June, 1888, while the term of the court when defendant is cited to appear is stated to be the first Monday in June, 1888." The original citation recited that the petition was filed on the 22d day of May, 1888; and the sheriff's return thereon shows that it was executed on defendant by delivering to her in person a true copy of the original. The motion and affidavit of defendant were insufficient to overthrow the sheriff's return, and the court did not err in so holding. Randall v. Collins, 58 Tex. 231; Gatlin v. Dibrell, 11 S. W. Rep. 908.

The next assignment of error is: "The court erred in holding as sufficient to authorize the judgment the citation served on defendant on the 29th day of May, 1888, and that said citation was served five days, as contemplated and required by law, before the first day of the return-term, to-wit, the 4th day of June, 1888, and that such service was sufficient in law to compel defendant to appear and answer at a term of the court beginning on the 4th day of June, 1888." Under this assignment, it is contended that the five days prescribed by statute to intervene between the service of citation and the first day of the term to which it is returnable must be five secular days. The language of the statute is: "Art. 1228. The citation shall be served before the return-day thereof; and, in order to compel the defendant to plead at the return-term of the court, the citation must have been served at least five days before the first day of such return-term, exclusive of the days of service and return." Under the act of December 22, 1836, (1 Laws Tex. 201,) which simply provided that the citation "shall be executed at least five days before the return day thereof," it was held that there must be five intervening days, exclusive of the days of service and return. O'Connor v. Towns, 1 Tex. 107. By the act of March 16, 1848, the statute was amended so as to exclude from computation both the days of service and return, in conformity with the decision in O'Connor v. Towns; and such has been the statute ever since. From the beginning, the statutes of Texas have declared Monday to be the day for beginning the terms of courts; and we think that, if the legislature had designed that five secular days should intervene between the day of service and the return-day of the writ, the law would so declare. The unvarying construction of...