Andrews v. C. Ennis & Co.

16 Tex. 45

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Hemphill, Ch. J.

This was a suit on a promissory note. The defendant's motion to quash the writ was refused, and judgment being for plaintiffs, the defendant sued out his writ of error, and assigns that that there was error,

1st. In refusing to quash the writ; and

2d. In permitting the Clerk to amend.

The objections to the citation are :

1st. That it was not tested in the name of the Clerk.

2d. That it did not contain the names of parties plaintiffs to the suit.

It appears that the clause of attestation was omitted. This was an error, the statute requiring that writs and processes should be tested in the name of the Clerk. The test is, however, but a matter of form, and its omission may be cured by amendment, as was done in this case. That citations may be amended has been repeatedly decided by this Court. (1 Texas, 483 ; 3 Id., 261; 5 Id., 130 ; 1 Id., 468.)

The next objection is that the citation does not set out the names of the parties plaintiffs. It would have been more satisfactory had the names of the plaintiffs been fully set forth, suing under the style of their firm. But the statement of the firm name is deemed a sufficient compliance with the statute. The petition, a copy of which accompanied the writ, fully disclosed the names of the plaintiffs, and there could be no doubt or construction, but that the defendant was required to answer in this particular suit, or that the judgment will not fully protect him against a second recovery on the same demand.

Judgment affirmed.